1 


THE  DEVELOPMENT 
INSTITUTION 


•V    111 


1 


BY 

THOMAS 


THE  DEVELOPMENT  OF 
INSTITUTIONS   UNDER   IRRIGATION 


THE  MACMILLAN  COMPANY 

MXW  YORK    •    BOSTON  •    CHICAGO  •    DALLAS 
ATLANTA  •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON  •    BOMBAY  •   CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


THE  DEVELOPMENT  OF 
INSTITUTIONS  UNDER  IRRIGATION 

WITH  SPECIAL  REFERENCE 
TO  EARLY  UTAH  CONDITIONS 


BY 


GEORGE  THOMAS,  A.B.,  Ph.D. 

Professor  of  Economics,  University  of  Utah 


Jl3eto  got* 

THE  MACMILLAN  COMPANY 
1920 

AU  rights  reserved 


R\ 


COPYRIGHT,  1920, 
BY  THE  MACMILLAN  COMPANY 


Set  up  and  electrotyped.    Published  September,  igao. 


PKEFACE 

The  Mormons  entered  the  Great  Salt  Lake  Valley 
July  21,  1847.  Little  was  then  known  of  the  Great 
West,  its  possibilities  or  problems.  The  Mormon 
pioneers,  except  in  so  far  as  they  had  read  the  reports 
of  trappers,  hunters  and  explorers,  knew  no  more  about 
the  West  or  its  problems  than  did  their  fellow  country- 
men. Unyielding  as  many  of  these  problems  were,  they 
were  to  be  grappled  and  solved  in  a  typical  American 
fashion  by  the  new  settlers  who  were  mentally,  physi- 
cally and  intellectually  well  prepared  through  experience 
for  the  task.  The  solutions  were  undertaken  by  them 
in  the  same  orderly  fashion  that  had  characterized  their 
ancestors  in  the  solving  of  New  World  problems  from 
the  days  of  Jamestown  and  Plymouth. 

One  of  the  important  problems  about  which  they 
knew  little  or  nothing  was  irrigation.  From  every 
point  of  view,  it  was  the  paramount  problem.  Manu- 
factured commodities  could  be  obtained,  with  considera- 
ble effort,  from  the  East,  but  food  must  be  produced  in 
the  territory  if  it  was  to  become  the  permanent  abode  of 
the  new  settlers.  This  could  be  accomplished  only 
through  a  system  of  irrigation.  The  Utah  pioneers, 
through  necessity,  turned  their  attention  to  this  task 
and  were  successful,  introducing  irrigation  on  a  large 
scale  to  America.  This  introduction  not  only  involved 
the  application  of  water  to  the  land,  but  the  establish- 


31 


VI 


PREFACE 


ment  of  institutions  of  irrigation.  How  the  Mormons 
acquired  a  knowledge  of  the  principles  and  practices 
of  applying  water  to  the  soil  has  been  well  told  by  others. 
The  story,  however,  of  how  they  developed  institutions 
of  irrigation  has  never  been  adequately  told  so  far  as 
the  writer  knows.  Not  only  is  it  an  intensely  interest- 
ing story  in  itself,  but  the  principles  and  institutions 
evolved  are,  in  many  respects,  as  applicable  to  the  West 
to-day  as  they  were  when  first  applied.  They  embody 
valuable  lessons  in  the  institutional  use  of  water  for  the 
development  of  communal  life  in  arid  America.  In 
fact  they  include  some  of  the  best  principles  for  which 
the  ablest  American  thinkers  on  irrigation  are  now 
striving. 

The  effort  has  been  made  in  this  brief  treatise  to 
allow  the  original  sources  to  tell  their  own  story  for 
good  or  ill.  The  aim  of  the  writer  has  been  to  chronicle 
the  successes  and  failures  with  equal  honesty. 

Necessarily  much  of  the  information  contained  in  the 
treatise  was  obtained  through  actual  field  work  by  the 
writer.  The  main  written  sources  used  by  the  writer 
were  Pratt' s  Diary,  Snow's  Diary,  Laws  of  Deseret, 
Session  Laws  of  the  Territory  of  Utah,  Land  Laws  of 
the  United  States,  Kinn^y's  Irrigation,  Wiel's  Water 
Rights  in  the  Western  States,  Minutes  of  the  County 
Courts  of  the  Counties  of  Cache,  Box  Elder,  Weber, 
Davis,  Salt  Lake,  Utah,  Sanpete,  etc.,  Records  of  the 
County  Water  Commissions  of  the  counties,  Water 
Records  on  file  in  the  offices  of  County  Recorders, 
Minutes  of  the  City  Councils  of  the  cities  of  Salt  Lake, 
Ogden,  Logan,  Provo ;  legislation  of  the  territory,  State 
and  the  United  States  pertaining  to  irrigation,  decisions 


PREFACE 


vn 


of  Supreme  and  District  Courts  of  the  Territory  and 
State  of  Utah,  Keports  of  State  Engineers,  Eecords  of 
the  State  Land  Board,  U.  S.  legislation  pertaining  to 
Carey  Act  and  Reclamation  Projects;  Bulletins  on 
Irrigation  by  U.  S.  Government. 

The  thanks  of  the  writer  are  gratefully  extended  to 
President  John  A.  Widtsoe,  University  of  Utah ;  Prof. 
O.  W.  Israelson,  Utah  Agricultural  College;  Professor 
O.  J.  P.  Widtsoe,  and  Dr.  A.  L.  Neif  of  the  University 
of  Utah  for  their  many  helpful  suggestions. 

GEOBGE  THOMAS. 
Salt  Lake  City,  Dec.,  1919. 


CONTENTS 

CHAPTER  I 

PAGE 

INTRODUCTION 1 

CHAPTER  II 

INDIVIDUAL,   PARTNERSHIP    AND   COMMUNITY    CANALS   m 
EARLY  DAYS IT 

CHAPTER  III 
LAND  SYSTEM 29 

CHAPTER  IV 
WATER  LEGISLATION  1849-1880 42 

CHAPTER  V 
COUNTY  COURTS  AND  THE  CONTROL  OF  IRRIGATION  WATER    57 

CHAPTER  VI 
CITY  CONTROL  OF  WATER w    .     .    92 

CHAPTER  VII 
IRRIGATION  DISTRICTS ••;..:•  **" 


CHAPTER  VIII 
COUNTY  WATER  COMMISSIONERS 138 


CONTENTS 
CHAPTER  IX 

PAGE 

DISTRICT  OB  TRIAL  COURTS  AND  IRRIGATION  .....  152 

CHAPTER  X 
SUPREME  COURT  DECISIONS  AND  IRRIGATION  .     .     .     .     .  167 

CHAPTER  XI 
THIRTY-EIGHT  YEARS  OF  IRRIGATION  LEGISLATION  .     .     .  188 

CHAPTER  XII 
THE  BEAR  RIVER  CANAL    ..........  203 


CHAPTER 

STATE  IRRIGATION  PROJECTS  AND  STATE  ASSISTANCE  OP 
PRIVATE  PROJECTS  .....     *     .....  219 

CHAPTER  XIVi 
THE  CAREY  ACT     .........    >     .     .  231 

CHAPTER  XV 
RECLAMATION  SERVICE  .......    v    .     .     .  245 

CHAPTER  XVI 
DRAINAGE       .........     ......  264 

CHAPTER  XVH 
THE  LEGISLATION  OF  1919  .  >     .  274 


LIST  OF  ILLUSTRATIONS 

A  Community  Canal Frontispiece 

FACING 
PAGE 

Bear  Kiver  Valley 202 


THE  DEVELOPMENT  OF  INSTITUTIONS 
UNDER   IRRIGATION 


CHAPTER  I 

INTRODUCTION 

Irrigation  has  become  an  established  institution  in 
the  West  and  in  many  respects  its  achievements  have 
been  wonderful.  Yet  it  is  possible  only  under  cer- 
tain conditions.  There  are  hundreds  of  millions  of 
fertile  acres  that  will  never  be  reclaimed  because  they 
will  never  feel  the  quickening  effect  of  water  in  suffi- 
cient quantities  to  become  productive.  Accessible 
water  is  not  available  in  sufficient  quantities,  even 
through  storage  of  the  winter  rains  and  melted  snows, 
to  supply  the  needs  of  plants  on  the  extensive  arid 
areas.  Far  out  on  the  plains  or  plateaus  water  could 
not  be  conveyed  economically  to  the  lands,  even  if  there 
were  an  abundance  obtainable  in  the  mountains.  From 
the  foregoing  it  is  not  meant  to  convey  the  idea  that  the 
supply  of  water  is  nearly  exhausted.  Far  from  it ;  mil- 
lions of  acres  can  and  will  be  redeemed  with  water  now 
going  to  waste  or  excessively  used.  Yet  after  the  avail- 
able water  supply  is  exhausted,  whole  sections  of 
country  will  remain  unreclaimed. 

Strange  as  it  may  seem  to  many,  the  very  foundation 
of  irrigation  in  this  country  rests  upon  the  great  systems 

of  mountains  traversing  the  western  part  of  the  con- 

l 


2  >\  Jj^Lt^WJfT  JOP  3N&TITVTIONS  UNDER  IRRIGATION 

tinent  from  the  north  to  the  south.  These  systems 
comprise  the  Sierra  Nevada,  Rocky  Mountains,  and  like 
ranges  and  chains.  The  main  bodies  of  these  moun- 
tains extend  several  thousands  of  feet  above  the  sea  level 
and  their  monumental  peaks  tower  several  thousand 
feet  higher.  Their  lofty  peaks  tap  the  clouds  and  draw 
away  from  them  the  moisture  in  the  form  of  snow  and 
water  and  store  it  away  in  the  soil  as  water  or  in  the 
ravines  of  the  mountains  as  snow  and  ice  until  needed. 
Some  persons  maintain  that  the  mountains  prevent  the 
movement  of  moisture  in  the  air  and  thus  condemn 
large  western  areas  to  infertility.  Such  speculation 
can  never  be  demonstrated  one  way  or  another.  But  it 
is  a  fact  that  as  nature  exists,  the  mountains  are  the 
fountain-heads  of  irrigation.  In  autumn,  winter,  and 
spring,  moisture  falls  on  the  mountains,  in  the  valleys, 
and  on  the  plateaus.  A  small  amount  falls  in  the 
summer  or  growing  season,  but  not  enough  to  supply 
moisture  for  plant  growth.  Generally  when  the  rain- 
fall is 'less  than  20  inches  annually  irrigation  must  be 
resorted  to.  Such  a  statement  must  be  qualified  by  the 
nature  of  the  crop  and  the  climatic  conditions.  Sugar 
beets,  alfalfa  and  fruit  require  more  water  than  rye 
and  winter  wheat.  When  the  rainfall  and  the  grow- 
ing season  are  coincident,  less  moisture  is  necessary  to 
produce  a  crop  because  the  plant  can  use  the  moisture 
as  it  falls.  The  loss  through  the  run-off  is  much  less 
than  it  is  when  the  ground  is  frozen  a  considerable  part 
of  the  time  while  it  is  raining  and  snowing.  Under 
later  conditions  when  the  thaws  come  in  the  spring, 
much  of  the  water  runs  off  and  goes  to  waste.  The 
rainfall  in  Utah  is  about  twelve  to  fifteen  inches  a  year 


INTRODUCTION  3 

and  the  ground  is  frozen  a  considerable  part  of  the 
time  while  it  is  raining  and  snowing.  Due  to  the 
frozen  conditions  of  the  soil  when  the  thaws  come,  much 
of  the  water  runs  off  and  goes  to  waste.  The  mountains 
usually  have  a  much  heavier  fall  than  the  valleys. 

The  mountains  furnish  large  drainage  areas  and 
through  their  contour  gather  the  water  run-off  into  the 
mountain  streams  which  carry  it  to  the  valleys  below. 
From  these  streams  it  is  diverted  by  means  of  canals  to 
the  farming  lands.  If,  however,  there  were  not  imped- 
ing forces  the  water  would  rush  down  in  torrents  as 
soon  as  it  descended  from  the  clouds.  Coursing  down 
the  steep  hills  and  canyons  as  it  does,  if  unretarded 
in  its  movement  and  undiminished  in  its  quantity,  it 
would  wash  away  the  best  soils  and  destroy  the  valleys. 

There  are  three  retarding  forces,  two  natural,  and 
one  artificial.  The  natural  retarding  forces  or  reser- 
voirs are  much  the  larger  and  by  far  the  more  im- 
portant. As  already  indicated,  in  the  winter  months 
large  quantities  of  snow  fall  in  the  Rocky  Mountains 
and  in  the  Sierra  ISTevadas.  The  high  fierce  winds  that 
blow  over  the  ranges  and  up  and  down  the  canyons,  pile 
the  snow  very  deep  in  the  ravines  and  on  the  sides  of 
the  ridges  protected  from  the  air-currents.  The  snow- 
drifts often  reach  a  depth  of  over  a  hundred  feet.  The 
temperature  during  the  winter  months  falls  very  low  in 
the  mountains  so  that  much  of  the  snow  is  frozen  into 
solid  bodies  of  ice,  producing,  in  effect,  small  glaciers. 
Where  the  canyons  run  east  and  west  most  of  the  drifts 
are  located  on  the  south  side  of  the  canyons  or  on  the 
north  side  of  the  ridges.  These  are  the  valuable  snow 
drifts  for  supplying  water  for  late  summer  irrigation. 


4:       DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

Located  on  the  north  side  of  the  ridges  they  are  pro- 
tected from  the  direct  rays  of  the  spring  and  summer 
sun  and  melt  very  slowly ;  whereas  those  that  lie  on  the 
south  side  of  the  ridges  get  the  full  power  of  the  sun 
and  melt  early  in  the  season.  The  supply  of  moisture 
thus  early  disappearing  leaves  the  soil  on  the  south  side 
of  the  ridges  very  dry  in  the  long  months  of  summer. 
So  dry  does  it  become  that  nothing  but  scrubby  cedar 
and  dwarfed  wild  brush  grow  there.  This  vegetation 
is  so  dwarfed  that  it  does  not  afford  any  shade  for  the 
snow.  The  snow-drifts  on  the  north  side  of  the  ridges 
last  very  much  longer  for  two  principal  reasons :  first, 
they  do  not  receive  the  direct  rays  of  the  sun ;  second, 
the  high  peaks  and  the  forest  trees  shade  them  during 
the  greater  part  of  the  day  and  delay  the  melting,  and 
in  turn  the  slowly  melting  snows  afford  sufficient 
moisture  for  the  tree  growth.  The  trees  in  turn  protect 
the  snow  so  that  its  total  disappearance  is  often  delayed 
until  late  in  August. 

The  melting  snow  and  ice  directly  feed  the  mountain 
streams.  The  small  streamlets  make  their  way  down 
the  hillsides  in  small  but  well  established  channels  until 
they  join  larger  and  larger  streams,  until  eventually 
they  reach  the  water-course  which  in  turn  supplies  the 
irrigation  canals.  The  snow-drift  is  the  first  natural 
reservoir. 

The  second  natural  reservoir  is  the  mountain  soil  it- 
self. In  fact  it  surpasses  in  importance  the  snow-drifts 
and  the  glaciers.  Much  of  the  water  from  the  rains, 
snows,  and  melting  ice  finds  its  way  into  the  porous 
earth.  There,  as  it  were,  it  is  held  in  captivity  in  an 
immense  earthen  sponge.  Slowly  it  percolates  through 


INTRODUCTION  5 

the  soil  until  it  finds  some  easy  exit.  It  enters  the 
streams  directly  from  the  earth  in  small  quantities  by 
what  is  known  as  percolation  or  in  larger  quantities 
known  as  springs.  The  movements  of  this  immense 
body  of  water  through  the  earth  take  a  long  time  and  is 
a  slow  process,  so  that  thousands  of  springs  gush  forth 
perennially. 

In  the  northwestern  Rocky  Mountains  and  the  Sierra 
Nevada  States,  these  two  kinds  of  reservoirs  are  great 
regulating  forces  that  control  the  supply  of  water  enter- 
ing the  greater  number  of  the  streams,  so  that  after  the 
early  spring  run-off  there  is  a  fairly  constant  flow.  In 
the  southwestern  part  of  the  mountain  states,  where 
these  forces  do  not  operate  so  extensively,  there  are 
floods  that  frequently  destroy  the  canals  and  dams  and 
leave  stream-beds  dry  in  early  summer. 

Forest  and  grazing  managemenH  and  control  have 
done  much  to  regulate  the  flow  of  the  mountain  streams, 
for  vegetation  plays  an  important  part  in  the  amount 
of  water  that  percolates  into  the  soil.  The  fallen  leaves 
and  other  vegetable  matter  lying  on  the  ground  prevent 
the  immediate  run-off  of  the  water  derived  from  the 
rains  and  snow  and  melting  ice.  The  roots  of  the  trees, 
bushes  and  grass  open  up  the  earth  and  afford  passage 
for  the  water  to  flow  down  into  the  soil  thus  impound- 
ing it,  as  it  were,  in  an  immense  reservoir. 

The  denuding  of  the  mountains  of  vegetation  is  almost 
fatal  to  irrigation,  especially  if  the  earth  is  tramped 
down  compactly  by  herds  of  cattle  and  sheep.  The  moun- 
tain range  lying  to  the  east  of  the  Sanpete  Valley,  Utah, 
is  a  good  example  of  this  kind  of  treatment.  In  the 
early  days  of  the  settlement  of  the  valley,  the  mountain 


6        DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

streams  after  the  spring  run-off  were  fairly  constant. 
Naturally  the  streams  decreased  somewhat,  late  in  the 
summer,  but  supplied  the  farmers  depending  on  them. 
Subsequently  large  herds  of  sheep  and  cattle  were  kept 
on  the  headwaters  of  the  streams.  They  overgrazed  the 
range,  destroyed  the  vegetation  and  tramped  down  the 
earth  so  compactly  that  vegetation  could  scarcely  grow 
and  the  water  could  not  penetrate  the  ground,  and  as 
soon  as  the  hot  sun  began  to  melt  the  snow  the  floods 
came  down  in  torrents,  washing  out  bridges,  destroying 
canals,  and  flooding  farm  lands.  Even  the  towns  them- 
selves were  sometimes  submerged. 

Such  was  the  situation  when  the  United  States  Forest 
Service  took  control  of  the  forest  reservation,  created 
in  1903  in  that  area  of  the  State.  By  proper  treatment 
vegetation  was  restored  and  in  a  great  measure  the  flow 
of  the  streams  brought  back  to  their  former  satisfactory 
regularity.  Moreover,  by  the  proper  range  manage- 
ment it  has  been  possible  to  graze  as  many  sheep  and 
cattle  as  formerly  and  at  the  same  time  protect  the  flow 
of  the  water  and  also  the  growth  of  vegetation.  The 
United  States  Forest  Service  has  been  of  great  value  to 
the  Western  States,  including  Utah.  In  spite  of  the 
fact  that  it  had  to  be  forced  upon  the  people,  in  many 
cases,  it  has  proved  of  incalculable  benefit. 

The  third  kind  of  reservoir  is  artificial  and  of  least 
importance,  but  while  it  is  of  smallest  importance  it  is 
the  best  understood.  There  are  thousands  of  artificial 
reservoirs  in  the  Mountain  and  Pacific  States.  The  rea- 
son for  their  being  best  understood  is  that  they  are  man- 
made.  The  smaller  ones  are  used  for  supplying  water 
to  households,  gardens,  and  the  like.  Such  as  were 


INTRODUCTION  7 

easily  and  inexpensively  constructed  were  built  years 
ago.  Many  of  them  have  been  employed  in  water  con- 
servation in  the  West  from  the  earliest  times.  The 
more  substantial  and  larger  reservoirs  are  structures  of 
recent  date.  They  are  usually  located  in  low  or  de- 
pressed places  in  the  mountains  or  the  high  plateaus 
where  by  constructing  a  dam,  a  large  basin  is  created 
wherein  water  can  be  held  until  it  is  needed.  In  the 
dry  seasons  it  is  turned  into  the  natural  streams  or 
canals  to  be  used  at  lower  levels  on  farm  lands. 

For  twenty  years  or  more  before  the  United  States 
passed  the  National  Reclamation  Act  (1902),  the  Geo- 
logical Survey  of  the  United  States  had  conducted  an 
extensive  hydrographic  survey  of  western  streams  to  de- 
termine the  annual  run-off.  Likewise  and  at  the  same 
time  it  had  sought  out  and  located  a  large  number  of  the 
best  reservoir  sites  in  the  Western  States.  Some  of  the 
States  and  Territories  had  engaged  in  similar  activities, 
but  in  the  aggregate  the  amount  of  work  undertaken 
by  the  States  did  not  amount  to  much  except  as  supple- 
mental to  the  work  carried  by  the  Federal  Government. 
As  soon  as  the  Reclamation  Act  was  passed  this  mass 
of  valuable  information  became  available  and  it  was 
very  useful  to  the  new  Service.  It  was  employed  to 
locate  several  of  the  best  reservoirs  which  have  since 
been  constructed  by  the  Federal  Government  through 
the  Reclamation  Service. 

The  work  along  this  line  has  only  just  begun.  In 
the  future,  reservoirs  will  play  an  increasing  part  in 
storing  water  for  irrigation  and  also  in  regulating  its 
flow.  In  fact,  they  are  the  great  hope  for  increasing 
the  irrigated  area  in  the  West,  as  the  drifting  and  freez- 


,8       DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

ing  and  melting  of  ice  and  snow  are  beyond  human  con- 
trol. The  storage  in  the  mountain  soils  can  be  in- 
creased considerably  by  proper  forestry  and  grazing  con- 
trol, but  there  are  innumerable  reservoir  sites  and  vast 
quantities  of  run-off  water  that  can  be  stored  only  when 
proper  reservoirs  are  built  which  will  eventually  be  done 
as  population  increases  and  land  enhances  in  value. 
The  low  price  of  land  in  this  country  in  the  past  has 
made  it  economically  impossible  to  construct  reservoirs 
and  redeem  much  of  the  best  arid  land.  The  time, 
however,  is  not  far  distant,  with  the  constantly  increas- 
ing price  of  food  products,  when  such  undertakings 
will  be  highly  profitable  and  will  also  provide  homes  for 
thousands  of  Americans  who  desire,  and  are  prepared, 
to  remain  on  the  land. 

The  storage  of  moisture  in  the  high  areas  by  freezing 
it  into  snow  and  ice  and  the  retention  of  the  water  in 
the  mountain  soils  and  in  the  reservoirs  is  essential  to 
successful  irrigation,  but  of  equal  importance  to  the  suc- 
cess of  irrigation-agriculture  is  the  development  and  the 
acceptance  of  a  good  system  of  irrigation-law  and  of  ir- 
rigation-institutions. Yet  in  this  particular,  irrigation 
does  not  differ  from  other  human  activities.  The  ef- 
fectiveness of  the  institutions  through  which  these  activ- 
ities function  determines  in  a  large  measure  their  suc- 
cess. 

This  study  of  the  irrigation  institutions  of  the  State 
of  Utah  is  undertaken  with  a  view  to  understanding  how 
the  Mormon  pioneers  coped  with  the  institutional  prob- 
lems of  irrigation,  and  successfully  solved  them  as  a 
means  of  crop-production  in  arid  America.  The  condi- 
tions confronting  this  people  were  almost  entirely  new 


INTRODUCTION  9 

to  them.  They  were  well  acquainted  with  both  the  in- 
stitutional and  the  cultural  side  of  agriculture  in  the 
humid  regions ;  but  how  to  organize  canal  companies, 
and  distribute  the  water  among  the  users,  or  how  to 
place  it  upon  the  land  so  as  to  produce  crops  were  un- 
known problems.  Here  they  were  to  get  their  first 
lessons  in  farming  under  arid  conditions.  Yet  they 
journeyed  across  the  plains,  established  settlements, 
and  built  up  thriving  communities,  with  irrigation 
farming  as  the  physical  basis  of  an  economic  and  en- 
during stability.  Moreover,  a  careful  study  of  the  in- 
stitutions and  their  variations  in  the  different  parts  of 
the  commonwealth  reveals  the  fact  that  it  was  not  the 
work  of  one  man  or  several  men  but  the  resourceful 
initiative  of  a  body  of  frontier  Americans  applied  to 
new  problems,  the  solution  of  which  was  essential  to 
their  very  existence.  They  were  the  descendants  of  a 
race  that  had  crossed  a  continent  and  why  should  they 
be  perturbed  at  the  difficulties  at  hand  when  all  others 
had  been  successfully  solved  ?  Moreover,  their  religious 
faith,  which  had  been  the  cause  of  their  exodus  from  the 
settled  parts  of  the  nation,  taught  them  that  God  would 
care  for  his  children.  Descendants  of  a  sturdy  Ameri- 
can stock  and  possessing  a  strong  faith  in  the  Divine, 
they  set  forth  to  conquer ;  and  conquer  they  must. 

Even  the  very  soil  itself  was  somewhat  different 
from  the  soils  they  had  known  in  humid  countries  and 
required  a  different  treatment.  In  many  sections,  be- 
fore the  land  could  be  cultivated  it  had  to  be  cleared  of 
large  quantities  of  wild  sage.  Not  until  then  could  it 
be  plowed.  Either  before  or  after  the  preparation  of 
the  land  the  canals  had  to  be  dug  and  water  diverted 


10      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

from  the  natural  streams.  This  was  often  a  long,  ardu- 
ous, and  not  infrequently,  a  difficult  task.  The  streams 
had  their  sources  far  back  in  the  mountains  and  they 
flowed  down  the  bottoms  of  rocky  and  rugged  canyons. 
Where  the  water  was  diverted  from  the  natural  streams 
into  the  canals  for  the  low-lying  lands  it  usually  involved 
comparatively  little  work;  but  for  the  higher  and  fre- 
quently better  lands,  it  was  often  necessary  to  begin  the 
diversions  from  the  mountain  streams  far  up  in  the 
canyons  and  to  bring  the  canals  along  rocky  side  hills. 
This  meant  much  work  and  often  the  costly  blasting  of 
a  canal  through  considerable  bodies  of  rock. 

When  the  canals  had  been  built,  the  soil  prepared, 
and  the  crops  planted,  water  was  brought  through  the 
canals  to  supply  moisture  to  the  growing  crops.  Often, 
just  wrhen  everything  appeared  ready  for  irrigation  and 
the  crops  were  in  need  of  moisture,  the  water  was  turned 
into  the  canals  only  to  find  that  the  banks  on  the  side 
hills  or  along  some  levee,  immediately  gave  way  and 
could  be  restored  only  at  a  great  cost  of  time  and  labor, 
and  then  perhaps  too  late  to  be  of  any  real  value  to  the 
crops  that  year.  The  washing  out  of  the  banks  of  the 
canals,  however,  was  only  temporary  where  there  was 
proper  construction,  for  usually  the  snows  and  rains 
of  fall,  spring  and  winter  so  packed  the  earth  that 
little  difficulty  was  encountered  the  second  season  after 
construction. 

After  the  water  had  been  brought  to  the  land,  the 
pioneer  still  had  difficult  problems  to  solve.  When  and 
how  often  should  the  water  be  applied  to  the  different 
crops  and  which  was  the  best  method  of  spreading  it 
over  the  soil  and  bringing  it  to  the  roots  of  the  plants  ? 


INTRODUCTION  11 

Early  experience  taught  him  that  the  same  method 
did  not  bring  like  results  in  different  soils  and  with  dif- 
ferent crops.  Even  scientific  research  has  not,  after 
years  of  investigation  and  study,  given  the  final  answer 
to  all  these  questions.  Yet  the  Mormon  pioneer  had 
to  find  a  "  rough  and  ready  "  solution  in  order  to  pro- 
duce food  to  live. 

It  is  not  contended  that  these  problems  were  original 
with  the  Mormon  pioneer  in  irrigation,  for  they  had 
attended  every  attempt  at  irrigation  in  the  arid  states. 
Nor  is  it  maintained  that  the  Mormons  were  the  first  to 
engage  in  irrigation  in  western  North  America.  In  fact 
they  were  not.  Prehistoric  man  undoubtedly  in  some 
crude  way  supplied  water  to  famishing  soil  in  order  to 
promote  plant  growth.  This  was  as  true  of  North 
America  as  of  other  parts  of  the  world.  The  ruins  of 
vast  and  marvelous  irrigation  systems  in  Arizona  are 
mute  evidence  of  the  fact  that  prehistoric  man  knew 
the  value  of  irrigation  and  practiced  the  art  long  before 
the  discovery  of  America.  In  the  Old  World,  Babylon 
had  once  been  a  fruitful  country  by  the  application  of 
the  waters  of  the  Euphrates  and  Tigris  rivers  to  crop 
production.  But  the  glory  of  Babylon  had  departed  and 
with  it  most  of  its  irrigation  activities.  When  the  West 
was  being  explored  and  settled,  Egypt,  India,  Spain,  and 
Italy  were  living  examples  of  the  beneficent  effects  of 
irrigation  on  the  production  of  crops  on  arid  lands. 

The  Pima  Indians  of  Arizona  were  employing  irriga- 
tion long  before  and  likewise  at  the  time  of  the  dis- 
covery and  the  settlement  of  the  Western  States  and 
Territories.  The  Spanish,  already  familiar  with  the 
conditions  that  necessitated  irrigation  in  their  native 


12      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

land,  introduced  it  in  their  settlements  of  California 
and  New  Mexico.  Upon  the  establishment  of  the  San 
Diego  Mission  in  1769,  irrigation  canals  were  built  to 
supply  water  to  part  of  the  farm  crops.  Other  missions 
followed  the  example  of  San  Diego.  If  such  a  policy 
had  not  been  pursued  it  would  have  been  impossible  to 
supply  the  missions  with  certain  necessary  foods  in  this 
new  environment.  Soon  after  the  establishment  of  the 
'  Presidio  in  San  Francisco  it  was  seen  that  if  certain 
crops  necessary  for  food  were  to  be  produced,  irrigation 
would  have  to  be  resorted  to.  So  a  settlement  was 
located  at  San  Jose  in  1782,  an  irrigation  system  estab- 
lished and  irrigation  farming  on  a  small  scale  begun. 
In  addition  to  supplying  the  community's  needs  a  sur- 
plus was  produced  for  the  soldiers  and  officers  at  the 
Presidio.  Los  Angeles  was  established  in  1781  as  an 
agricultural  community  based  upon  irrigation-farming. 
For  a  year  or  two,  according  to  Bancroft,  the  early 
settlers  in  Oregon,  led  by  Whitman  and  Spaulding,  re- 
sorted to  irrigation  but  by  1842  had  given  it  up.  They 
had  found  that  by  better  cultivation  it  was  not  necessary 
in  that  section.  The  Spanish  and  Mexican  settlers  in 
the  valley  of  Rio  Grande,  New  Mexico,  built  canals  of 
considerable  size  before  1842.  They  are  still  in  use 
and  rendering  first  class  service.  It  is  simply  mar- 
velous how  they  constructed  large  canals  in  such  dif- 
ficult territory  and  with  crude  or  primitive  implements. 
Where  cuts  were  necessary  the  earth  was  loaded  upon 
ox  hides  and  drawn  away  by  donkeys  or  oxen.  The 
same  means  was  employed  to  supply  the  necessary  earth 
to  build  dams,  dikes,  or  levees  across  ravines  or  other 
low  places.  The  methods  employed  made  the  comple- 


INTRODUCTION  13 

tion  of  the  work  slow,  but  through  persistence  water  was 
finally  supplied  to  the  parched  earth.  Within  the 
boundaries  of  the  territory  itself  there  were  some  small 
and  primitive  efforts  at  cultivation.  John  Brown  in 
his  journal  p.  47  under  date  of  August  1847,  says  "  at 
Weber  River  we  found  the  fort  of  Mr.  Goodyear  which 
consisted  of  some  log  buildings  and  corrals  stockaded  in 
with  pickets.  This  man  had  a  herd  of  cattle,  horses 
and  goats.  He  had  a  small  garden  of  vegetables,  also 
a  few  stocks  of  corn,  and  although  it  had  been  neglected, 
it  looked  well  which  proved  to  us  that  with  proper  culti- 
vation it  would  do  well." 

Parley  P.  Pratt  who  conducted  an  exploring  expedi- 
tion to  that  region  (the  southern  part  of  the  basin)  in 
the  winter  of  1849-50  wrote  under  date  of  January  2nd 
that  while  on  the  Santa  Clara  River  that  the  company 
was  piloted  by  Indians  "  who  raised  good  crops  on  the 
river  bottoms  by  irrigation."  Addison  Pratt  relates 
that  a  company  of  emigrants  going  to  California  by  the 
southern  route  in  the  fall  of  1849  "  found  Indian  corn 
fields "  on  the  tributaries  of  the  Virgin  River. 
"  Brother  Rich  reported  that  there  were  fine  fields  of 
wheat,  corn  and  beans  above  us  belonging  to  the  Indians, 
who  irrigated  their  lands  from  the  streams." 

If,  then,  the  Mormons  were  not  the  first  to  employ 
irrigation  in  the  Western  World,  wherein  lies  their  at- 
tainment ?  Their  achievements  may  be  summed  up  un- 
der four  heads.  First:  The  Mormons  were  the  first 
people  to  establish  an  extensive  civilization  in  America 
with  its  economic  basis  resting  almost  wholly  upon  irri- 
gation agriculture.  Secondly:  they  were  the  first  peo- 
ple to  establish  irrigation  in  Western  America  on  an 


14:      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

extensive  scale.  Third :  they  were  among  the  first  in 
the  United  States  to  develop  rules,  regulations,  prac- 
tices, customs  and  laws,  pertaining  to  and  governing 
the  use  of  water.  Fourth:  they  were  the  first  to  give 
wide  publicity  to  irrigation.  Due  to  their  location, 
to  the  extent  and  the  success  of  the  undertakings  their 
achievements  became  widely  known  and  the  results  care- 
fully studied.  At  that  time  the  greatest  highway  across 
the  continent  passed  through  their  settlements.  Two 
years  after  the  settlement  of  Utah  gold  was  discovered  in 
California  and  tens  of  thousands  made  their  way  over- 
land by  way  of  Salt  Lake  City.  Brigham  Young  had 
advised  the  people  to  settle  upon  and  cultivate  the  soil. 
The  pursuit  of  this  counsel  for  over  two  years  had 
made  possible  a  resting  place  and  a  supply  station  for 
weary  overland  travelers.  They  could  replenish  their 
food  supply  at  this  central  mountain  depot  and  inciden- 
tally observe  the  effects  of  crop  production  under  irriga- 
tion. Utah  became  known  to  the  nation  and  to  the 
world.  Through  the  efforts  of  the  Utah  pioneers  a 
means  had  been  discovered  and  successfully  applied 
whereby  the  redemption  of  large  areas  of  the  lands  of 
the  West  was  made  possible. 

The  lands  immediately  reclaimed  by  irrigation  were 
not  the  only  natural  resources  economically  benefited. 
In  addition  to  such  lands  it  made  possible  a  far  better 
economic  use  of  millions  of  acres  of  grazing  lands.  Part 
farmer,  part  rancher,  the  settler  through  irrigation 
could  establish  a  home  near  grazing  lands  and  graze  his 
herds  on  the  public  lands  in  the  summer  and  supply  food 
for  them  during  the  winter  from  the  farm.  Looked  at 
from  a  national  standpoint  the  proper  development  of 


INTRODUCTION  15 

grazing  lands  is  a  valuable  asset  in  the  production  of 
wool  and  meat.  Moreover  the  food  produced  upon 
the  nearby  farms  was  economically  valuable  in  the 
development  of  some  of  the  most  profitable  mines  in 
the  world. 

To  the  travellers  the  relief  of  this  whole  situation  was 
brought  out  very  forcibly  because  the  Mormon  settle- 
ments were  bordered  on  the  East  and  the  West  by  long 
stretches  of  arid  and  only  partially  productive  lands. 
The  growth  on  these  lands,  where  there  was  any  at  all, 
consisted  of  wild  sage  or  a  light  crop  of  wild  grasses  so 
that  when  the  weary  and  worn  overland  traveller 
reached  the  territory,  the  luxuriant  fields  and  bounteous 
crops  stood  out  strongly  and  impressively.  Upon  in- 
quiry he  found  that  the  soil  in  the  arid  country  was 
usually  good,  but  the  changed  conditions  as  compared 
with  the  country  he  had  passed  over,  was  the  result  of 
the  application  of  irrigation  water  to  the  land. 

As  he  left  the  territory,  the  settler  realized  at  least 
partially  the  virtues  of  irrigation  and  became  the  ac- 
cl aimer  of  the  achievements  of  the  Mormon  colonizers. 
Utah  was  therefore  heralded  forth  as  the  innovator  and 
the  exemplar  of  irrigation  both  in  the  application  of 
water  to  the  soil  and  the  institutions  by  which  it  was 
controlled  and  distributed.  This  made  it  possible  for 
her  in  early  days  to  do  much  to  introduce  and  establish 
the  system  which  has  done  so  much  for  the  development 
of  the  Western  United  States. 


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16 


CHAPTER  II 


INDIVIDUAL,    PARTNERSHIP   AND   COMMUNITY   CANALS   IN 
EARLY  DAYS 

On  the  afternoon  of  July  21,  1847,  Orson  Pratt  and 
Erastus  Snow,  pathfinders  for  the  Mormon  pioneers, 
entered  the  Salt  Lake  Valley.  The  same  day  they  made 
a  circuit  of  the  valley  extending  over  some  twelve  miles 
and  returned  that  night  to  the  advance  company  which 
was  camped  in  what  is  now  known  as  Emigration  Can- 
at  a  point  about  one  and  a  half  miles  above  the 


von, 


mouth. 


CANALS 


Year 

Length  of 
Canals  in 

Miles 

Cost  of 

Canals 
Dollars 

Cost  per 
Acre  for 
Irrigation 

1850 

I860                                      

1870         

1880 

1890                                                .  .     . 

$2,780,000 

$10.55 

1900     .    .             

2,838 

5,865,302 

9.32 

1910    

7,709 

14,028,717 

14.04 

The  next  morning  early,  Orson  Pratt,  George  A. 
Smith  and  seven  others  continued  the  work  of  exploring 
the  valley.  The  same  day  the  advanced  company  moved 
down  into  the  Salt  Lake  Valley.  Orson  Pratt  in  his 
diary  speaks  of  the  valley  as  follows :  "  Streams  from 
the  mountains  and  springs  were  very  abundant,  the 

17 


18      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

water  excellent,  and  generally  with  gravel  bottoms,  a 
great  variety  of  green  grass,  and  very  luxuriant,  cov- 
ered the  bottoms  for  miles  where  the  soil  was  sufficiently 
damp,  but  in  other  places,  although  the  soil  was  good, 
yet  the  grass  had  nearly  dried  up  for  want  of  moisture." 

The  next  day,  July  23,  the  advance  camp  moved  on 
to  what  is  now  known  as  City  Creek  and  began  prepara- 
tion for  a  settlement.  Religious  services  were  held  for 
the  purpose  of  imploring  divine  assistance  and  imme- 
diately upon  their  conclusion  the  work  of  settlement 
began.  Again  quoting  from  Pratt' s  diary,  he  says: 
"  We  appointed  various  committees  to  attend  to  dif- 
ferent branches  of  business,  preparatory  to  putting  in 
crops,  and  in  about  two  hours  after  our  arrival  we  began 
to  plow,  and  the  same  afternoon  built  a  dam  to  irrigate 
the  soil,  which  at  the  spot  where  we  were  plowing  was 
exceedingly  dry."  The  morning  of  July  the  24th  found 
them  irrigating  and  on  the  afternoon  of  the  same  day 
Brigham  Young  and  the  second  company  which  had 
been  delayed  on  account  of  sickness  entered  the  valley  as 
the  following  quotation  from  Pratt's  diary  clearly  in- 
dicates :  "  This  forenoon  commenced  planting  our  pota- 
toes; after  which  we  turned  the  water  upon  them  and 
gave  the  ground  a  good  soaking.  In  the  afternoon  the 
other  camp  arrived,  and  we  found  all  the  sick  improv- 
ing very  fast,  and  were  so  as  to  be  able  to  walk  around." 

Thus  we  see  that  the  very  first  irrigation  dams  and 
canals  built  in  Utah  were  the  work  of  cooperative  activ- 
ity. Except  in  the  case  of  springs  and  very  small 
streams,  such  has  continued  to  be  the  policy  of  the  terri- 
tory and  the  State,  with  a  few  notable  exceptions,  until 
the  present  time. 


CANALS  IN  EARLY  DAYS  19 

The  smaller  canals  in  Utah  were  constructed  by  indi- 
viduals or  partnerships.  In  the  early  days  there  were 
very  few  individual  or  partnership  canals  except  where 
the  streams  were  small  and  would  supply  only  two  or 
three  small  farms.  The  fundamental  thing  to  under- 
stand is  that  the  canal  in  early  Utah  was,  as  a  rule,  a 
community  or  cooperative  undertaking  because  not  only 
the  welfare  but  the  very  existence  of  the  community  de- 
pended upon  its  success. 

Where  the  small  individual  or  partnership  canal  was 
built  it  was,  as  already  indicated,  to  use  the  water  of  very 
small  streams  or  where  the  water  was  drawn  from  large 
streams  to  supply  land  nearby  so  that  the  water  could 
be  easily  conducted  to  the  land  without  much  labor. 
Under  other  conditions  it  would  have  been  impossible 
for  one  to  four  men  to  build  a  canal  by  their  own  labor. 

The  community  or  cooperative  canal  was  the  all-im- 
portant means  of  supplying  the  towns  and  villages  of 
the  territory  with  water.  It  was  fundamental  inasmuch 
as  the  basic  industry,  agriculture,  could  not  exist  at  that 
time,  if  at  any  time,  in  the  Rocky  Mountains  without 
irrigation.  From  the  first  the  canal  was  a  community 
problem  to  be  solved  by  the  skill  and  labor  of  the  com- 
munity. When  it  was  decided  to  colonize  a  new  local- 
ity, the  Mormon  Church  authorities  not  only  called  upon 
the  desired  number  of  colonists  but  also  chose  a  leader 
for  the  new  community,  known  among  the  Mormons  as 
a  bishop,  who  with  his  two  councillors  or  assistants  be- 
came the  community  leaders. 

These  men  were  not  chosen  entirely  on  account  of 
their  religious  zeal,  but  also  because  of  their  practical 
ability  in  solving  the  problems  connected  with  the  estab- 


20      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

lishment  of  a  new  settlement.  In  the  construction  of 
an  irrigation  system,  the  bishop  played  a  leading  part 
in  getting  the  people  together  so  that  they  could  elect 
a  committee  to  take  actual  control  of  the  work.  The 
bishop  himself  was  frequently  a  member  of  the  manag- 
ing committee,  but,  if  so,  always  by  the  election  of  his 
fellow-colonists.  Upon  the  settlers  also  rested  the  re- 
sponsibility of  determining  how  much  land,  so  far  as 
the  topography  permitted,  the  new  system  would  bring 
under  cultivation.  To  have  constructed  a  high  line 
canal,  covering  all  the  good  land  as  far  up  as  the  water 
would  flow,  would  have  been,  in  the  long  run,  more 
scientific  and  economical,  but  for  a  body  of  poverty 
stricken  colonists  to  have  undertaken  and  carried  out 
such  a  project  with  the  meagre  quantity  of  supplies  on 
hand,  would  have  meant  starvation.  Consequently  it 
was  the  usual  policy  to  construct  a  canal  at  a  lower  level 
which  would  supply  water  to  a  smaller  acreage  until 
more  settlers  came  and  the  economic  position  of  the  com- 
munity was  improved  and  the  requirements  for  land 
justified  a  new  canal  at  a  higher  level.  This  accounts 
for  the  fact  that,  contrary  to  the  best  irrigation  knowl- 
edge of  to-day,  several  small  canals  at  different  levels 
are  to  be  found  supplying  water  to  many  of  the  fields 
in  Utah  communities. 

When  the  colonists  decided  about  where  the  canal  was 
to  be  built,  the  duty  of  locating  it  rested  with  the  com- 
mittee, who  also  directed  its  construction.  The  serv- 
ices of  a  surveyor  were  available  in  some  of  the  central 
communities  of  the  territory,  but  in  the  smaller  and 
more  remote  sections  the  distance  was  too  great  or  the 


CANALS  IN  EARLY  DAYS  21 

expense  too  high,  so  that  other  methods  of  determining 
the  grade  for  the  proposed  canal  had  to  be  used. 

A  simple  scheme  was  to  fill  a  pan  full  of  water  and 
then  sight  over  the  edges  along  the  proposed  route. 
Some  distance  ahead  a  so-called  poleman  would  carry  a 
pole  on  which  was  marked  the  height  of  the  top  of  the 
pan.  Bottles  filled  with  water  attached  to  a  piece  of 
square-edged  timber  and  spirit  levels  were  all  used  in 
the  manner  mentioned.  By  these  instruments  it  was 
comparatively  easy  to  tell  whether  the  water  would 
flow  in  the  proposed  canals.  It  was,  however,  difficult 
to  secure  the  right  grade,  consequently  the  movement  of 
the  water  in  many  of  the  early  canals,  is  quite  irregular 
at  different  places.  In  some  parts  of  the  canals  the 
water  flows  very  slowly  and  in  other  places  very  rapidly, 
washing  away  the  soil  until  a  hard  formation  is  reached 
there  creating  a  water  fall.  It  must  be  borne  in  mind 
that  all  the  early  canals  were  gravity  systems.  The 
mountain  streams  from  which  the  canals  are  supplied 
are  fed  by  flood  waters,  mountain  springs  and  melting 
snow.  The  first  canals  built  had  their  sources  some  dis- 
tance below  or  near  the  mouths  of  the  canyons.  Later 
canals  were,  built  at  much  higher  levels  in  order  to  irri- 
gate the  plateaus  or  foothills  of  the  mountains.  The  in- 
take of  such  canals  necessarily  extended  several  miles 
up  the  canyons. 

There  are  no  great  rivers  in  Utah,  and  when  we 
speak  of  large  streams  it  is  only  a  comparative  term. 
Often  the  small  streams  were  appropriated  by  individ- 
uals or  partners,  but  the  diversion  of  the  large  streams 
necessitated  the  united  efforts  of  a  community,  the  water 


22      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

was  employed  to  supply  larger  areas  of  lands  in  near- 
lying  valleys.  Contrasted  with  the  large  systems  of 
India  or  the  reclamation  projects  of  the  United  States, 
these  early  systems  were  small,  but  at  the  same  time 
many  of  the  canals  were  from  ten  to  twenty  miles  in 
length.  Along  the  main  canal  below  the  mouth  of  the 
canyons,  laterals  or  branches  were  built  to  supply  the 
different  areas  of  land  lying  below  the  main  canal. 
These  laterals  were  further  divided  until  it  came  down 
to  the  individual  ditch  of  the  farmer  using  the  water. 
In  the  light  of  more  modern  methods  of  construction, 
where  all  the  users  of  a  system  assist  in  construction 
of  the  canal  from  its  source  to  the  end,  there  is  an  inter- 
esting feature  in  these  early  Utah  canals,  which  were 
cooperative  undertakings.  The  lands  of  a  valley  were 
divided  up  among  the  different  settlements  and  while  a 
resident  of  one  town  may  occasionally  own  land  in  the 
field  of  a  neighboring  town  it  was  not  a  common  thing. 
It  did,  however,  often  happen  that  a  canal  was  built  to 
supply  water  for  the  fields  of  two  or  more  towns.  All 
towns  interested  worked  upon  tho  canal  from  its  source 
up  to  the  point  where  the  lands  of  the  first  town  ended ; 
then  an  accounting  of  the  work  done  was  had  and  the 
water  divided  accordingly  between  the  different  towns. 
At  that  point  the  first  community  would  quit  work  and 
the  construction  would  be  carried  forward  by  the  remain- 
ing communities  in  the  same  manner  to  the  completion 
of  the  canal,  each  succeeding  town  dropping  out  as  its 
limits  were  reached. 

In  the  northern  and  central  parts  of  the  State  the 
streams  generally  flowed  down  the  rugged  canyons  on 
rocky  beds,  and  it  was  comparatively  easy  to  construct 


CANALS  IN  EARLY  DAYS  23 

a  diverting  dam.  All  that  was  necessary  was  to  cut 
willows  and  fill  the  stream  with  them  and  with  rock  and 
earth.  Gradually  the  floor  of  the  stream  would  be 
raised  until  the  water  would  flow  into  the  canal.  In  the 
southern  part  of  the  State,  the  soil  is  sandy  and  the 
streams  come  down  in  floods  cutting  deep  channels  and 
frequently  changing  their  courses.  The  task  of  build- 
ing permanent  dams  under  such  circumstances  and  with 
the  materials  at  hand  is  almost  impossible.  Almost 
every  spring  the  old  dams  were  washed  away  and  new 
ones  had  to  be  built.  As  the  years  go  by,  there  is  a 
strong  tendency  to  supplant  the  rock  and  wooden  dams 
by  more  substantial  strictures  such  as  masonry  and 
concrete. 

In  many  places  in  the  canyons  in  constructing  the 
upper  parts  of  the  canals  the  soil  was  so  rocky  and  steep 
that  it  had  to  be  removed  by  picks,  spades  and  shovels. 
Frequently  the  canals  had  to  be  brought  along  mountain 
sides  where  the  rock  had  to  be  blasted  away.  The  fore- 
going does  not  refer  to  extreme  cases,  for  there  are 
numerous  cases  where  it  required  four  or  five  months 
a  year  for  three  or  four  years  to  blast  away  the  rock, 
the  remainder  of  the  year  being  spent  by  the  settlers 
away  from  home  working  for  bread  to  support  their 
families  until  the  water  could  eventually  be  brought  to 
the  land.  The  rocky  parts  after  the  canals  had  been  con- 
structed generally  caused  considerable  trouble  because 
the  water  would  seep  out  as  fast  as  it  would  run  in,  so 
that  clay  had  to  be  hauled  in  wagons  and  filled  into  the 
crevices  where  the  water  was  escaping.  This  was  done 
in  various  ways.  A  common  practice  was  to  distribute 
the  clay  soil  over  the  bottom  of  the  canal  as  evenly  as 


24      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

possible  and  turn  the  water  in.  The  water  itself  would 
have  a  strong  tendency  to  force  the  fine  clay  soil  in  to 
the  openings  where  the  water  escaped  and  thus  close 
them.  To  assist  in  the  process,  oxen  were  often  driven 
up  and  down  in  the  canal  while  the  clay  was  wet  or  even 
while  the  water  was  flowing  in  the  canal.  The  loss  of 
water  through  these  rocky  and  gravelly  formations  was 
so  great,  in  certain  canals,  that  is  was  with  extreme  dif- 
ficulty that  any  water  was  made  to  flow  through  during 
the  first  season,  causing  a  loss  of  all  or  a  large  part  of 
the  crop  by  drought. 

Down  in  the  valleys  where  it  was  possible,  it  was 
common  to  plow  the  canal  the  entire  length  and  to  turn 
the  furrows  out  so  that  the  dead  furrow  would  form 
the  center  of  the  canal.  When  this  was  accomplished, 
two  yoke  of  oxen  would  be  hitched  to  a  loaded  "  go 
devil "  and  it  would  be  drawn  along  and  through  the 
proposed  route  of  the  canal,  pushing  the  plowed  dirt 
out  on  the  bank.  Where  this  could  be  successfully 
done  it  saved  much  shovelling.  In  some  cases,  it  was 
possible  to  plow  the  canal  two  or  three  times  and  have 
the  "  go  devil "  drawn  through  after  each  plowing. 
A  "  go  devil "  was  made  by  taking  two  pieces  of  plank 
twelve  or  fourteen  inches  wide  and  from  five  to  eight 
feet  long,  the  exact  length  being  determined  by  the  size 
of  the  implement  desired.  The  planks  were  fastened  to- 
gether in  such  a  way  as  to  form  a  A.  The  point  of  the 
implement  thus  formed  was  the  nose  or  front  and  the 
part  to  which  the  team  was  hitched.  The  planks  were 
kept  apart  at  the  rear  by  means  of  braces.  Much  of 
the  soil  could  not  be  removed  by  the  "  go  devil,"  and 
it  had  to  be  shovelled  out  by  hand  labor.  In  a  great 


CANALS  IN  EARLY  DAYS  25 

many  cases  it  could  have  been  more  easily  removed  by 
scrapers  but  the  early  settlers  did  not  have  scrapers  and 
could  not  financially  afford  to  buy  them  even  if  they 
had  been  obtainable.  In  the  crossing  of  ravines  or  low 
lands,  it  was  frequently  necessary  to  build  levees  in 
order  to  carry  the  water  across.  Wagons  were  used  to 
haul  soil  to  make  fills  but  very  often,  owing  to  the  lack 
of  proper  implements,  most  of  this  kind  of  work  had 
to  be  done  by  laborers  with  shovels ;  this  was  a  slow  and 
laborious  method. 

In  the  construction  of  the  early  canals,  very  little  at- 
tention was  given  to  drainage  and  as  the  years  have  gone 
by,  thousands  of  acres  of  excellent  soil  formerly  irri- 
gated and  cultivated,  have  become  water-logged  and  use- 
less as  alkali  has  risen  to  the  surface  to  such  an  extent 
that  vegetation  will  not  grow. 

During  the  time  of  construction,  a  committee  elected 
by  the  land  claimants  was  in  control  but  when  the  canal 
was  completed  the  committee  was  released  and  a  water- 
master  was  elected  to  control.  His  term  was  for  a 
year  and  he  was  paid  so  much  per  day  for  the  actual 
time  employed.  All  the  settlers  were  poor  and  wages 
were  low.  They  paid  the  water-master  at  the  rate  of 
about  two  dollars  a  day  for  the  actual  time  engaged  in 
canal  service.  If  it  was  necessary  to  use  a  team  the 
pay  was  slightly  increased.  The  duties  of  the  water- 
master  were  to  see  that  the  water  was  kept  in  the  canal ; 
to  prevent  the  canal  from  breaking  and  to  call  out  the 
irrigators  to  repair  it  if  it  did  break;  to  notify  each 
irrigator  when  it  was  his  "  turn  "  or  time  to  use  the 
water  and  also  when  his  head  gate  at  the  proper  time 
was  to  be  shut  down.  During  March  or  April  he  called 


26      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  irrigators  together  to  receive  a  report  of  the  past 
season. 

The  legislature  in  granting  charters  to  the  towns  to 
form  municipal  corporate  organizations  frequently  in- 
cluded in  the  charter  the  right  to  control  all  canals  and 
streams  flowing  through  their  corporate  limits.  In 
such  cases  the  mayor  or  council  of  the  town  appointed 
the  water-master. 

In  the  communities  of  Utah,  irrigation  water  was 
used  in  rotation.  Rotation  is  the  most  economical  way 
of  using  water  especially  where  a  continuous  flow  would 
give  such  a  small  stream  that  it  could  not  be  successfully 
used  to  flood  the  land.  The  plan  generally  followed  was 
to  allow  so  much  time  for  each  acre  or  water  right  held 
by  an  individual  or  so  much  time  for  every  dollar  in- 
vested in  constructing  the  canal.  It  was  ordinarily 
arranged  that  the  turns  should  be  from  one  to  two  weeks 
apart.  This  was  also  determined  at  a  general  meeting 
of  all  the  irrigators  or  by  the  water-master. 

The  cleaning  and  repairing  of  the  canals  had  to  be 
performed  every  spring.  At  the  spring  meeting  ordi- 
narily a  committee  of  three  was  appointed  to  estimate 
how  much  it  would  cost  per  acre.  Two  methods  were 
pursued :  First,  the  cost  per  acre  irrigated  or  per  dollar 
for  construction  was  estimated  and  the  wage  for  a  man 
or  a  man  and  a  team  was  fixed.  Then  beginning  at  a 
certain  day  at  the  head  of  the  canal,  the  work  was  con- 
tinued under  the  supervision  of  the  water-master  until 
the  canal  was  cleaned  or  repaired.  The  other  method 
was  for  the  committee  to  divide  the  canal  into  stints  and 
to  notify  each  irrigator  of  his  stint.  A  certain  day  was 
set  for  the  work  to  be  completed.  It  was  the  duty  of  the 


CANALS  IN  EARLY  DAYS  27 

water-master  to  see  that  it  was  properly  done.  As  a 
rule  the  farmers  did  the  work  themselves  and  very  little 
labor  was  hired.  The  same  methods  in  the  main  prevail 
up  to  the  present  time. 

It  has  been  said  by  some  writers  that  thousands  of 
canals  built  in  Utah  belong  to  the  communities.  This 
is  true  if  the  meaning  is  understood.  They  did  not  be- 
long to  the  community  as  a  corporate  body  but  in  the 
sense  that  each  settler  was  the  owner  of  land  and  in 
order  to  secure  the  necessary  water  to  make  it  fruitful 
he  had  to  own  a  share  in  the  canal,  which  he  secured, 
as  a  rule,  by  his  own  labor.  Because  early  settlers  were 
poor,  hired  labor  played  practically  no  part  in  canal  con- 
struction. Each  settler  possessed  a  small  farm  and  that 
made  close  settlement  possible  and  supplied  the  necessary 
labor  to  build  canals.  If  the  settlers  had  been  allowed 
to  claim  all  the  land  they  wanted  the  territory  would 
have  been  held  by  a  comparatively  few  people  who,  poor 
as  they  were,  could  not  have  supplied  the  labor  to  take 
out  the  water  and  the  soil  would  have  remained  sterile 
and  fruitless  and  a  shortage  of  food  would  have  pre- 
vailed. With  the  close  settlement  plan  the  farmers  sup- 
plied the  labor  themselves  to  build  the  canals  and  re- 
claim the  land.  So  that  the  thousands  of  miles  of 
canals  of  early  Utah  were  built  without  bonded  indebt- 
edness or  indebtedness  of  any  kind.  They  were  built 
by  the  farmers,  owned  by  the  farmers,  and  operated 
by  the  farmers.  In  fact  they  constitute  one  of  the 
greatest  and  most  successful  community  or  cooperative 
undertakings  in  the  history  of  America. 

In  1910,  out  of  a  total  irrigated  area  of  999,410 
acres  in  Utah,  individual  and  partnership  canals  irri- 


28      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

gated  222,448  acres,  and  cooperative  canals,  687,260 
or  91.1  per  cent,  of  the  entire  irrigated  area  of  the 
State  at  a  cost  of  $11.22  an  acre.  The  average  size  of 
these  irrigated  farms  is  32.9  acres. 


CHAPTER  III 

LAND    SYSTEM 

The  area  included  within  the  boundaries  of  the  pres- 
ent State  of  Utah  was  part  of  the  territory  acquired  by 
the  United  States  from  Mexico  in  the  war  of  1846.  At 
the  close  of  the  war  the  territory  taken  by  force  of  arms 
was  permanently  ceded  by  the  treaty  of  Guadalupe 
Hildalgo  to  the  United  States.  For  two  years  the 
United  States  failed  to  provide  any  form  of  civil  gov- 
ernment for  its  new  possessions.  Left  to  their  own  re- 
sources the  pioneers  of  Utah,  being  of  one  religious 
faith,  submitted  to  ecclesiastical  authority.  Efficient 
as  was  this  authority  it  soon  became  obvious  that  it  was 
not  sufficient  to  meet  all  the  demands  of  a  new  commu- 
nity so  a  convention  was  called  March  2,  1850,  to  frame 
a  constitution  for  the  State  of  Deseret  and  the  Congress 
of  the  United  States  was  petitioned  to  admit  the  terri- 
tory as  a  state. 

On  September  9,  1850,  Congress  passed  an  act  provid- 
ing civil  government  for  this  vast  western  domain  that 
was  so  little  known  and  less  appreciated.  By  this  law 
California  was  to  become  a  State  and  the  remainder  of 
the  territory  acquired  from  Mexico  was  divided  into  two 
territories,  New  Mexico,  including  part  of  the  present 
State  of  Arizona  on  the  south,  and  Utah  on  the  north. 
The  boundaries  of  Utah  extended  from  the  summit  of 

29 


30      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  Rocky  Mountains  on  the  east  to  California  on  the 
west  and  north  from  the  thirty-seventh  parallel  to  the 
southern  boundary  of  Oregon,  embracing  the  present 
States  of  Utah,  Nevada  and  parts  of  Colorado  and 
Wyoming. 

As  already  indicated,  when  the  Mormons  entered  the 
Salt  Lake  Valley,  July  21,  1847,  it  belonged  to  the 
United  States  and  theoretically  the  territory  was  under 
the  control  of  the  military  authorities  of  the  United 
States,  but  practically  no  effective  governmental  author- 
ity existed.  The  army  was  hundreds  of  miles  away 
and  the  Indians  and  coyotes  held  undisturbed  sway 
over  the  mountains  and  valleys,  except  for  an  occasional 
visit  of  a  fur-seeking  band  of  trappers  and  hunters. 

Even  after  Congress  had  established  a  territorial  gov- 
ernment in  Utah,  it  was  many  years  before  any  pro- 
visions were  made  to  satisfy  the  claims  and  extinguish 
the  rights  of  the  Indians  to  the  lands  occupied  by  the 
whites,  or  to  extend  the  Federal  Land  Laws  to  the  ter- 
ritory for  the  benefit  of  the  settlers.  In  the  eyes  of  the 
Indians,  the  whites  were  mere  trespassers  without  treaty 
rights  and  in  the  eyes  of  the  law  the  whites  were  mere 
squatters.  Yet  they  were  diverting  the  streams,  culti- 
vating the  lands,  erecting  dwellings  and  preparing  a  per- 
manent abode  for  themselves  and  their  children  for  all 
time. 

The  Indians  in  the  Salt  Lake,  Provo,  and  Weber  val- 
leys were  of  a  very  inferior  type  and  possessed  but  small 
power  of  resistance,  but  farther  south  and  north  they 
were  of  a  higher  grade  and  resisted  much  more  strongly 
the  intrusions  of  the  white  settlers  who  had  come  to 
occupy  their  lands.  Brigham  Young,  as  United  States 


LAND  SYSTEM  31 

Indian  agent,  entered  into  treaty  relationship  with  them 
so  far  as  his  power  extended  and  secured  several  con- 
cessions of  territory  from  them.  Even  the  constitution 
of  the  State  of  Deseret  did  not  contain  a  provision  giv- 
ing to  the  General  Assembly  any  authority  over  the 
land,  water  or  timber  in  the  new  commonwealth.  Per- 
haps the  makers  realized  that  the  land  at  least  belonged 
to  the  Federal  Government  and  could  not  be  disposed  of 
by  the  new  state  government  even  if  it  were  admitted, 
unless  express  authority  was  granted  to  do  so  in  the 
enabling  act.  Congress  passed  an  act  establishing  a 
territorial  government  in  Utah,  and  the  President  ap- 
proved it  September  9,  1850.  The  act  was  part  of  the 
Compromise  of  1850,  but  like  the  constitution  of  the 
State  of  Deseret  it  failed  to  grant  the  territorial  legis- 
lature any  authority  over  land,  water  or  timber.  Yet 
as  we  shall  see,  the  governor  and  legislative  assembly 
exercised  great  if  not  unrestricted  power  over  these 
natural  resources.  It  is  difficult,  if  not  impossible,  to 
determine  how  much  authority  the  territorial  govern- 
ment felt  itself  legally  possessed  of  in  respect  to  the  dis- 
posal of  the  waters,  the  streams  and  of  the  other  natural 
resources,  but  it  is  certain  from  the  very  initiation  of  a 
form  of  civil  government  that  it  was  recognized  that 
grants  of  lands  made  by  it  were  subject  to  the  superior 
title  of  the  Federal  Government  and  that  the  occupants 
of  land  were  legally  only  squatters  or  claimants.  It  is 
doubtful  whether  the  same  doctrine  held  true  in  regard 
to  water  and  timber.  At  all  events,  the  inhabitants 
were  allowed  to  consume  the  latter  and  use  the  former 
subject  to  certain  restrictions. 

From  July  24,  1847,  the  date  of  the  entrance  of  the 


32      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

pioneers  into  Salt  Late  Valley,  to  April  1,  1869,  a 
period  of  almost  twenty-two  years,  it  was  impossible  to 
locate  upon  a  piece  of  land  according  to  the  land  laws 
of  the  United  States  or  to  undertake  to  secure  title  to 
it  through  a  government  patent.  The  office  of  the  Sur- 
veyor General  of  Utah  was  created  Feb.  17,  1855  and 
D.  H.  Burr  was  appointed  to  the  position  March  13, 
1855,  but  on  June  30th,  1862,  the  Utah  and  Colorado 
offices  were  consolidated  and  the  records  moved  to  Den- 
ver. The  office  was  not  opened  again  in  Utah  until 
October  5,  1868,  and  a  United  States  Land  Office  was 
not  open  for  business  until  April  1,  1869. 

In  the  absence  of  legal  provision  by  the  Federal  Gov- 
ernment for  the  supervision  and  distribution  of  natural 
resources,  some  system  had  to  be  maintained  by  the  exist- 
ing authorities.  The  Mormon  Church,  a  compact  and 
thoroughly  organized  religious  association,  had  been  in 
existence  long  before  the  pioneers  entered  Salt  Lake 
Valley.  In  fact,  it  was  the  only  government  in  actual 
control  during  the  crossing  of  the  plains  and  for  many 
months  after  settlement  in  Utah.  From  July  24,  1847, 
to  March  15,  1849,  no  form  of  civil  government  was  in 
existence,  yet  all  the  transactions  involving  the  usual 
authority  of  governments  were  being  exercised  in  an 
orderly  manner  under  the  jurisdiction  of  the  Mormon 
Church.  Naturally  such  authority  could  properly  ap- 
ply only  to  the  adherents  of  the  faith  and  by  1849  there 
were  numbers  in  ihe  territory  who  did  not  belong  to  the 
Mormon  faith,  so  steps  were  taken  to  organize  a  state 
government  in  the  hope  that  Congress  would  admit  it 
into  the  Union.  On  March  14,  1849,  the  State  of  Des- 
eret  was  organized  and  although  not  recognized  by  the 


LAND  SYSTEM  33 

Federal  Government  continued  to  exist  until  superseded 
by  the  new  government. 

Neither  the  Mormon  Church  organization,  the  State 
of  Deseret  nor  the  territory  of  Utah  claimed  any  more 
than  temporary  or  emergency  jurisdiction  over  the  lands 
of  the  territory,  pending  some  action  of  Congress.  As 
already  pointed  out,  the  only  authority  in  existence  for 
many  months  after  settlement  began  was  the  Mormon 
Church  and,  it  was  only  natural  that  this  organization, 
in  the  absence  of  any  other,  should  set  itself  to  the  task 
of  organizing  a  system  of  colonization  that  would  be 
both  successful  and  harmonious.  If  the  economic  forces 
were  not  controlled,  they  might  very  easily  lead  to  such 
a  state  of  discord  as  to  disrupt  the  religious  association 
and  render  the  great  exodus  futile. 

The  plan  on  which  Salt  Lake  was  laid  out  was  the 
model  to  be  followed  in  other  settlements,  with  the  result 
that  most  Utah  towns  have  the  same  general  system  or 
arrangement.  A  description,  therefore,  of  the  methods 
pursued  and  the  plan  adopted  for  one  will  apply  to  all. 
The  scheme  was  successful,  but  there  is  such  a  likeness 
in  the  plans  of  Utah  towns  as  to  tire  one  who  is  accus- 
tomed to  variation  in  city  or  town  planning. 

When  the  Mormon  Church  authorities  determined 
upon  a  new  colonization  project,  a  location  was  selected, 
leaders  were  appointed  from  among  the  ones  experienced 
in  colonization ;  and  a  sufficiently  large  body  of  colonists 
to  protect  themselves  against  the  Indian  menace  and  to 
construct  irrigation  canals  were  called  to  locate  the  new 
town.  They  were  expected  to  move  in  a  body,  and 
did  so. 

The  place  chosen  for  the  town  was  usually  on  or  near 


34      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

a  stream  in  order  to  secure  the  necessary  irrigation 
water.  The  tendency,  which  almost  amounted  to  a  rule, 
was  to  locate  the  town  on  or  near  the  foothills  of  the 
mountains  adjacent  to  a  stream,  having  in  mind  at 
the  same  time  the  necessity  of  conveying  water  by  grav- 
ity canals  to  the  townsite.  Ordinarily,  about  a  half  of 
a  mile  to  a  mile  square  was  reserved  for  the  town  site. 
Streets  running  north  and  south  and  east  and  west  were 
laid  out  at  right  angles  and  at  such  distances  apart  as 
to  make  town  blocks  of  ten  acres  each.  A  block  was 
divided  into  eight  lots  containing  approximately  one 
and  a  quarter  acres  each.  A  lot  was  supposed  to  be 
large  enough  to  provide  room  for  a  residence,  a  vegetable 
garden,  a  family  orchard,  and  barns  and  outhouses. 
The  idea  back  of  it  all  was  to  establish  a  village  com- 
munity system.  Between  the  streets  and  the  sidewalks 
small  ditches  were  dug  to  supply  water  to  the  gardens 
and  sparkling  streams  of  pure  mountain  water  were 
permitted  to  flow  down  the  courses.  Near  them  shade 
trees  were  planted  which  in  time  contributed  to  the  com- 
fort and  beauty  of  Utah  towns  and  villages.  The  com- 
pactness of  the  village  was  necessary  in  order  to  protect 
the  colonizers  against  the  attacks  of  Indians  who  in  early 
days  were  always  on  the  alert  to  steal  the  live  stock  and 
in  many  instances  to  kill  the  whites.  This  danger  often 
led  to  the  erection  of  a  fort  in  the  center  of  the  town. 
Moreover  the  compact  village  community  made  access 
easy  to  the  meeting  house  where  religious  services  were 
conducted  and  amusements  carried  on.  The  religious 
element  is  a  very  important  one  to  consider  in  the  growth 
and  development  of  Utah  and  without  understanding 
it,  neither  the  colonization  nor  the  social  and  economic 


LAND  SYSTEM  35 

problems  of  the  State  can  be  fully  comprehended. 
The  lands  immediately  adjoining  the  towns  and  sub- 
ject to  irrigation  were  divided  into  five-  or  ten-acre  plots, 
although  in  some  cases  the  plots  were  made  larger  or 
even  still  smaller.  Enough  of  the  small  lots  were  laid 
out  to  supply  each  settler  with  one  and  to  leave  a  suf- 
ficient number  over  to  supply  settlers  coming  later. 
Just  beyond  the  area  divided  into  five  or  ten  acre  lots 
the  irrigable  land  was  divided  into  ten  acres,  twenty 
acre  farms  and  finally  in  a  few  cases  into  forty  acre 
farms.  Of  necessity  the  plan  was  not  carried  out  with 
absolute  regularity  in  all  towns  because  the  times  of  set- 
tlement differ  and  the  natural  conditions  varied  consid- 
erably. In  the  older  parts  of  the  State,  the  major  part 
of  the  cultivated  lands  near  the  towns  is  still  held  in 
five,  ten,  and  twenty  acre  pieces.  In  some  cases,  de- 
pending on  the  nature  of  the  crops  produced,  the  acreage 
held  by  the  farmer  has  proven  too  small  for  economical 
cultivation  and  there  has  been  a  slight  tendency  to  buy 
each  other  out  and  combine  so  as  to  make  larger  units. 
The  Church  authorities  would  not  permit  speculation  in 
land  in  the  early  days,  and  a  man  was  not  allowed  to 
claim  all  the  land  or  pieces  of  land  that  he  wanted.  A 
single  man  who  had  attained  his  majority  or  a  head  of 
a  family  was  limited  according  to  the  needs  of  those 
dependent  on  him.  In  an  allotment  the  amount  of  irri- 
gable land  in  proportion  to  the  population  was  also  taken 
into  consideration  and  a  just  distribution  made,  even 
though  it  meant  a  smaller  acreage  for  each  holder. 
When  a  higher  line  canal  was  taken  out  additional  allot- 
ments were  made.  Twenty  to  forty  acres  were  the  total 
amounts  usually  allowed. 


36      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

If  there  were  lowlands  in  the  valley  where  wild  grass 
grew  sufficiently  tall  to  cut,  each  settler  was  allotted  a 
portion  of  this  land  in  order  to  provide  feed  for  his  ani- 
mals during  the  winter.  These  wild  hay  lands  usually 
lay  along  the  sloughs  and  streams  where  the  flood  or  the 
spring  waters  overflowed  and  moistened  the  ground  so 
that  the  wild  grasses  grew  from  one  to  two  feet  high. 
The  higher  farming  lands  were  usually  so  dry,  until  they 
were  irrigated,  that  grasses  could  not  be  grown  upon 
them. 

A  common  herd  ground,  which  was  subject  to  ap- 
proval by  the  County  Court  after  1852,  was  set  apart 
for  the  community.  On  these  grounds  the  milch  cows, 
young  cattle  and  unused  oxen  were  herded  by  a  town 
herdsman  during  the  day,  in  the  summer  months,  to  be 
returned  to  their  homes  for  the  night,  otherwise  the 
Indians  would  steal  and  slaughter  them  all.  In  early 
days  before  there  was  sufficient  forage  to  feed  the  work 
animals  in  the  barns  they  were  sent  to  the  herd  ground 
at  night  accompanied  by  one  or  two  or  more  armed 
guards  to  prevent  their  being  driven  away  by  the  Indians 
who  were  always  alert  and  often  successful  in  stealing 
whole  herds  of  cattle  or  horses. 

Not  only  the  success  but  the  very  existence  of  the 
settlers  depended  on  their  ownership  of  the  land  and 
control  of  the  waters  of  the  territory.  Yet  the  land 
belonged  to  the  Federal  Government  and  for  all  they 
knew  it  might  also  assert  jurisdiction  over  the  water. 
Naturally  they  felt  apprehensive  over  the  situation  be- 
cause while  the  ecclesiastical  authorities  could  divide  up 
the  land,  they  could  not  insure  any  kind  of  title  to  it. 
An  act  of  the  territorial  legislature  of  1852  placed  the 


LAND  SYSTEM  37 

entry  of  the  public  lands  under  the  jurisdiction  of  the 
County  Courts  in  the  several  counties.  So  that  after  this 
date  any  disposition  made  hy  the  church  authorities  was 
subject  to  the  approval  of  the  County  Court.  However 
as  the  same  men  exercised  authority  in  both  fields  little 
conflict  occurred. 

As  already  indicated,  the  Enabling  Act  of  the  terri- 
tory did  not  grant  the  territorial  legislature  any  author- 
ity or  control  over  the  disposal  of  the  lands  in  Utah,  but 
in  the  frequent  changes  and  transfers  which  will  natur- 
ally take  place  in  a  new  country  it  was  imperative  that 
something  be  done  to  protect  the  men  who  were  redeem- 
ing and  cultivating  the  soil  and  likewise  those  who  pur- 
chased improvements^  In  the  absence  of  any  action  by 
Congress  it  was  better  for  a  legislature  to  usurp  control, 
pending  legislation  by  the  proper  authority,  than  for 
none  to  exist.  On  March  6,  1852,  the  legislature  en- 
acted the  following  provision : 

"  When  any  conveyance,  sale,  or  transfer  shall  be  made 
of  any  legal  claim,  or  right  of  possession  of  any  city  lot, 
or  surveyed  lands  or  land,  part  or  parts  thereof  within  this 
territory,  the  seller  or  vendor  of  the  same  shall  make  and 
execute  to  the  vendor  a  full  and  written  quit  claim,  and 
possession  to  the  premises  so  transferred,  and  acknowledge 
the  same  before  the  county  recorder  where  the  premises 
are  situated." 

On  January  18,  1855,  the  legislature  provided  for  the 
transfer  of  all  land  claims  whether  surveyed  or  not. 
On  January  2,  1861,  the  territorial  legislature  passed  an 
act  concerning  the  ownership  and  control  of  land.  Sec- 
tion 1  reads  as  follows: 


38      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

"Any  person  who  has  inclosed  or  may  hereafter  inclose 
a  portion  or  portions  of  unclaimed  government  land,  or 
cause  it  to  be  done  at  his  expense;  or  has  purchased  or  may 
hereafter  purchase  such  inclosure;  or  erect,  caused  to  be 
erected  or  purchased  any  building  or  other  improvement 
thereon,  or  may  hereafter  do  so  is  hereby  declared  to  be  the 
lawful  owner  of  the  claim  to  the  possession  of  such  inclosed 
land,  and  the  lawful  owner  of  the  improvements  thereon 
and  thereunto  appertaining;  and  they  shall  be  so  deemed 
and  held  in  all  legal  proceedings  and  in  all  rights  and  doings 
pertaining  or  relating  to  the  aforesaid  property." 

The  act  further  provides  for  every  form  of  legal  pro- 
tection afforded  the  owners  of  land  in  fee  simple.  The 
idea  back  of  it  was  to  define  as  clearly  as  possible  the 
claims  of  the  various  settlers  so  as  to  minimize  "  land 
jumping."  This  was  accomplished  by  requiring  the 
claimants  to  fence  their  claims.  Fencing  was  also  a 
practical  means  of  limiting  the  size  of  the  claims.  It 
was  impossible  to  lay  claim  to  any  large  amount  of  land 
as  long  as  it  had  to  be  inclosed  by  a  pole  fence  since 
the  labor  of  cutting  the  posts  and  the  poles,  hauling 
them  from  the  mountains  and  setting  them  up  was  too 
great  for  pioneers  who  were  at  the  same  time  engaged 
in  planting  and  harvesting  crops  on  which  to  live. 

In  the  settlement  of  a  new  country  frequent  changes 
of  location  take  place.  When  settlers  possess  title,  they 
can  transfer  to  new  settlers  or  where  they  legally  enter 
government  land  they  can  relinquish  and  the  new  set- 
tlers can  reenter  the  land  under  Federal  laws.  But  in 
the  case  of  the  Utah  pioneers  they  neither  owned  the 
land  nor  could  they  enter  it  under  the  Federal  laws,  yet 
there  were  frequent  transfers  by  sale.  In  order  to  pro- 
tect the  purchasers  of  these  claims  the  territorial  legis- 


LAND  SYSTEM  39 

lature  of  January  18,  1855,  provided  that  all  transfer 
of  land  claims  must  be  made  by  quit  claim  deeds  wit- 
nessed by  two  competent  witnesses  and  acknowledged 
before  some  person  authorized  to  take  acknowledgments. 
The  quit  claim  deed  was  then  to  be  properly  recorded  in 
the  office  of  the  county  recorder. 

The  Pre-emption  Act  had  been  in  force  some  six  years 
before  the  Mormon  pioneers  entered  the  Salt  Lake  Val- 
ley. It  provided  for  the  entry  of  not  less  than  forty 
nor  more  than  one  hundred  and  sixty  acres.  After  four- 
teen months  of  residence  and  the  payment  of  one  dollar 
and  twenty-five  cents  an  acre  the  entryman  could  prove 
up  and  receive  a  patent  from  the  United  States  Govern- 
ment. The  act  applied  only  to  heads  of  families  or  per- 
sons over  twenty-one  years  of  age. 

Like  much  of  the  land  legislation  the  Pre-emption  Act 
was  unsuited  to  the  arid  regions  and  especially  to  Utah. 
The  minimum  area  was  too  large  for  the  small  subdi- 
visions of  farm  lands  in  Utah.  The  territorial  legisla- 
ture memorialized  Congress  to  amend  the  act  so  as  to 
permit  of  the  entry  under  it  of  areas  as  small  as  five 
acres.  The  residence  requirement  was  difficult  of  fulfill- 
ment considering  the  hostility  of  the  Indians.  In  many 
parts  of  the  territory,  to  move  out  on  the  farm  lands 
and  away  from  the  fort  or  village  meant  certain  death. 
The  Federal  Government  had  given  the  Oregon  pioneers 
their  lands  and  the  legislature  petitioned  Congress  to 
pursue  a  similar  policy  toward  the  Utah  pioneers  but 
the  request  was  not  granted. 

In  1862  Congress  passed  the  Homestead  Act,  which 
provided  for  the  entry  of  80  to  160  acres.  The  entry- 
man was  required  to  reside  upon  the  land  five  years. 


40      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

This  did  not  suit  the  Utah  situation  as  well  as  the  Pre- 
emption Act,  if  the  provisions  were  to  he  strictly  ad- 
hered to.  But  at  the  time  nothing  could  be  done  under 
either  act  because  the  United  States  had  not  established 
a  land  office  in  Utah  and  very  little  of  the  land  had 
been  surveyed. 

In  March,  1869,  a  United  States  Land  Office  was  estab- 
lished at  Salt  Lake  City  and  on  April  1st,  claimants  be- 
gan to  enter  the  land  which  many  of  them  had  cultivated 
for  over  twenty  years.  It  is  an  interesting  bit  of  history 
to  know  how  this  was  accomplished  under  the  existing 
land  laws  of  the  United  States,  considering  the  small 
areas  claimed  by  the  Utah  farmers.  In  many  instances, 
from  sixteen  to  thirty  claimants  were  in  possession  of  a 
hundred  and  sixty  acres  of  land ;  especially  was  this  true 
when  the  land  lay  near  a  town.  The  plan  followed 
was  for  the  interested  parties  in  any  given  quarter  sec- 
tion to  meet  and  determine  under  which  law  they  should 
attempt  to  secure  title.  After  this  was  done,  one  mem- 
ber of  the  claimants  was  chosen  to  enter  the  land  for 
the  benefit  of  himself  and  the  others.  Sometimes  the 
agreement  included  an  understanding  that  the  entryman 
in  addition  to  securing  title  to  his  own  claim  should  be 
compensated  for  the  loss  of  his  homestead  or  pre-emption 
right  as  the  case  may  be. 

All  of  these  arrangements,  legally  speaking,  were  void 
and  a  strict  interpretation  of  the  law  would  preclude 
the  final  proof  of  the  entry.  Moreover,  the  entryman 
neither  in  the  case  of  the  Pre-emption  Act  nor  under 
the  Homestead  Act  made  any  pretension  to  establishing 
a  residence  on  the  land  because,  in  practically  all  cases, 
their  homes  were  already  fully  established  in  the  town 


LAND  SYSTEM  41 

to  which  the  lands  usually  lay  adjacent.  The  most  that 
was  done  was  to  build  a  small  cabin  of  lumber,  or  logs, 
on  some  part  of  the  quarter-section.  It  was  not  infre- 
quent for  the  several  entrymen  of  a  section  to  unite  and 
build  a  cabin  in  such  a  position  that  each  corner  of 
the  cabin  should  rest  on  a  corner  of  a  quarter-section. 
Occasionally  the  entrymen  would  sleep  in  the  cabin. 
The  expenses  of  entry  and  final  proof  were  divided 
among  the  occupants  according  to  the  land  held,  and 
when  final  proof  was  made  and  the  patent  issued  from 
the  United  States  Government  the  holder  of  the  patent 
deeded  to  each  occupant  the  land  he  had  cultivated.  If 
compensation  had  been  agreed  on  for  the  entryman  in 
view  of  the  loss  of  his  right,  principally  in  favor  of 
others,  it  was  paid  at  the  time  the  transfer  was  made. 
It  was  almost  an  unheard  of  thing  for  the  holder  of  the 
patent  to  fail  to  transfer  the  land  to  the  occupants. 

The  only  thing  to  be  said  for  this  violation  of  the  land 
laws  of  the  United  States  was  that  it  was  done  with  the 
full  knowledge  and  at  least  the  connivance  of  the 
United  States  officials  and  not  with  the  idea  of  specu- 
lation or  fraud  against  the  government  but  to  secure 
title  to  the  soil  that  the  pioneers  had  reclaimed  and  made 
productive  by  irrigation.  The  failure  to  live  on  the 
land  was  merely  a  technicality  as  they  were  really  home- 
lands and  the  owners  lived  in  the  nearby  communities. 


CHAPTER  IV 

WATER  LEGISLATION  1849-1880 

The  pioneers  of  Utah  were  natives  of  the  Eastern  or 
humid  parts  of  the  United  States  and  were  naturally 
familiar  with  the  water  laws  of  those  regions.  These 
laws  had  originally  come  from  England  with  the  Brit- 
ish colonies  where  the  problem  was  one  of  taking  water 
from  the  land  rather  than  bringing  water  to  it.  The 
physical  conditions  in  the  Eastern  States  where  the  col- 
onies first  settled  were  similar  in  respect  to  humidity  to 
those  in  the  mother  country.  In  each,  therefore,  the  law 
of  riparian  rights  obtained.  It  might  have  been  ex- 
pected of  the  pioneers  of  Utah,  Anglo  Saxons  as  they 
were,  that,  in  line  with  their  bent  of  mind,  they  would 
be  apt,  and  would  at  least  attempt,  to  introduce  the  same 
system  into  the  new  territory. 

To  see  what  a  calamity  such  a  system  would  have 
been  it  is  only  necessary  to  consider  briefly  the  law  of 
riparian  rights.  According  to  the  provisions  of  this 
system  the  riparian  owner  of  land  bordering  on  a  lake 
or  stream,  is  entitled  to  have  the  stream  flow  on  as  it 
was  wont  to  do,  and  to  have  the  lake  remain  as  nature 
placed  it.  In  other  words,  the  riparian  owner  of  land 
had  a  right  to  have  the  water  flow  undiminished  in  quan- 
tity and  unpolluted  in  quality.  In  the  words  of  the  cel- 
ebrated California  case  of  Lux  vs.  Haggin,  decided  in 

42 


WATER  LEGISLATION  1849-1880  43 

I 

1884,  which  fixed  on  the  State  of  California  the  doctrine 
of  riparian  rights,  the  Supreme  Court  of  the  State  said : 
"  The  right  of  the  riparian  proprietor  to  the  flow  of  the 
stream  is  inseparably  annexed  to  the  soil,  and  passes 
with  it,  not  as  an  easement  or  appurtenance,  but  as  a 
part  and  parcel  of  it.  Use  does  not  create  it  nor  disuse 
destroy  or  suspend  it.  The  right  in  each  extends  to  the 
natural  and  usual  flow  of  all  the  waters,  unless  where  the 
quantity  has  been  diminished  as  a  consequence  of  the 
reasonable  application  of  it  by  other  riparian  owners  for 
purposes  hereafter  mentioned.  The  right  of  enjoying 
this  flow  without  disturbance  or  interruption  by  any 
other  proprietory  is  one  of  jure  nature  and  is  an  incident 
of  the  property  in  land,  not  an  appurtenance  to  it,  like 
the  right  he  has  to  enjoy  the  soil  itself,  in  its  natural 
state  unaffected  by  the  tortuous  acts  of  a  neighboring 
land  owner.  It  is  an  inseparable  incident  to  the  owner- 
ship of  the  land,  made  by  an  inflexible  rule  of  law  an 
absolute  and  fixed  right  and  can  only  be  lost  by  grant  or 
twenty  years  of  adverse  possession." 

This  is  the  law  of  riparian  rights  as  generally  recog- 
nized and  applied ;  an  unsound  principle  for  an  arid 
state  was  fastened  on  California  by  its  own  supreme 
court,  years  after  its  admission  into  the  Union  and  after 
a  long  and  varied  experience  with  its  own  arid  condi- 
tions. For  such  a  learned  body  to  render  such  a  far- 
reaching  and  important  decision  based  on  precedent 
and  on  a  so-called  law  of  nature,  instead  of  on  the  in- 
herent needs  of  the  arid  region,  when  it  is  realized  that 
it  could  apply  only  in  analogous  conditions  which  were 
almost  entirely  absent  in  the  State,  was  legal  blindness. 
No  one  knows  what  the  law  of  nature  means,  and  the 


44      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

best  thinkers  of  the  world  maintain  that  there  is  no 
such  a  law.  For  the  Supreme  Court  to  base  such  a  far- 
reaching  decision  on  such  a  vague  foundation  was,  to 
say  the  very  least,  an  evidence  of  poor  thinking. 

In  contrast  with  this  notable  decision  the  action  of 
the  leaders  of  the  pioneers  of  Utah,  in  absolutely  ab- 
rogating the  doctrine  of  riparian  rights,  and  acting,  in 
the  main,  on  the  theory  that  the  waters  of  the  streams 
and  the  lakes  of  the  territory  belong  to  the  public  and 
are  subject  to  appropriation  by  individuals  or  to  grants 
by  the  legislature  or  subordinate  bodies  created  by  it, 
shows  a  far  keener  appreciation  of  the  needs  of  the  arid 
regions.  The  doctrine  adopted  for  the  economic  and 
beneficial  use  of  water  is  certainly  a  remarkable  advance. 
It  is  also  indicative  of  much  of  the  wisdom,  sagacity  and 
initiative  of  these  men  in  solving  many  practical  prob- 
lems attending  the  colonization  of  an  entirely  new  and 
untried  country.  It  is  not  to  be  assumed  that  when  the 
old  system  was  abolished,  a  new  one,  full  and  complete, 
immediately  sprang  into  existence.  Neither  were  the 
underlying  principles  of  public  ownership  and  control 
or  economic  and  beneficial  use  always  persistently  and 
consistently  followed.  It  was  an  honest  attempt,  how- 
ever, to  build  a  system  of  water  law  and  custom  that 
would  suit  the  arid  region. 

For  more  than  three  years  before  the  territorial  gov- 
ernment was  established  and  almost  two  years  before  the 
State  of  Deseret  was  organized,  so  that  laws  could  be  en- 
acted, the  doctrine  of  the  diversion  of  waters  from 
streams  for  economic  and  beneficial  use  was  the  accepted 
policy  approved  by  the  leaders  of  the  Mormon  Church, 
the  controlling  force  in  the  early  settlement.  By  the 


WATER  LEGISLATION  1849-1880  45 

time  legislatures  had  come  into  existence  prepared  to 
pass  laws  and  make  grants  the  feasibility  of  the  new 
system  was  beyond  question.  Fundamentally  it  was 
the  application  of  the  law  of  self  preservation.  The 
adoption  of  any  other  doctrine  would  have  made  impos- 
sible the  colonization  and  settlement  of  the  lands  of  the 
Rocky  Mountains  and  the  Great  Basin.  No  legislative 
act  of  the  territory  of  Utah  was  ever  passed  which 
specifically  abrogated  the  doctrine  of  riparian  rights 
pertaining  to  waters  nor  specifically  adopting  the  doc-  / 
trine  of  appropriation,  yet  all  the  early  legislation  was  / 
based  upon  and  adopted  the  new  theory.  The  legisla- 
tures not  only  acted  on  the  theory  itself,  but  expressly 
delegated  the  same  power  in  the  first  session  of  the  terri- 
torial legislature  to  the  county  courts  of  the  several 
counties.  Section  39  of  an  act  defining  the  powers  of 
this  court,  approved  Feb.  4,  1852,  says:  "  The  County 
Court  has  the  control  of  all  timber,  water  privileges, 
or  any  water  course,  or  creek  to  grant  mill  sites,  and 
exercise  such  power  as  in  their  judgment  shall  best 
preserve  the  timber  and  subserve  the  interest  of  the  set- 
tlements in  their  distribution  of  water  for  irrigation  or 
other  purposes.  All  grants  or  rights  held  under  legis- 
lative authority  shall  not  be  interfered  with."  By 
this  it  is  plain  to  be  seen  that  the  power  granted  to  these 
local  county  courts  was  extensive  and  was  based  on  the 
same  theory  of  public  ownership  of  water  as  was  acted 
upon  by  the  legislature  itself.  A  discussion  of  the  ex- 
ercise of  this  power  will  be  presented  in  a  separate 
chapter. 

In  order  to  comprehend  clearly  the  development  of 
the  law  and  practices  in  the  use  of  water  as  developed 


46      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

by  the  early  settlers,  specific  grants  will  be  considered. 
In  many  cases  where  legislative  grants  were  made,  the 
projects  were  not  completed  and  in  some  instances  not 
even  begun  because  of  the  lack  of  financial  resources  but 
they  will  be  recited  because  they  embody  certain  funda- 
f  mental  doctrines.  The  chief  proposition  and  the  one 
on  which  all  others  rest  is  that  the  State  (Territory) 
owns  and  thereby  has  a  right  to  control  the  waters  within 
its  boundaries,  in  so  far  as  they  are  not  interstate 
streams.  As  subdivisions  of  this  main  proposition  there 
are  six  principal  heads:  the  right  to  grant  preference 
of  use  for  irrigation ;  the  right  to  grant  a  restricted  use 
for  power  purposes,  as  in  the  case  of  flour  and  saw 
mills;  the  right  to  limit  the  amount  of  water  a  person 
or  corporation  can  appropriate;  the  right  to  prescribe 
the  territory  where  the  water  shall  be  used  ;  the  right  to 
fix  the  place  of  usage  or  the  point  of  diversion  which 
shall  not  be  changed  save  by  permission  of  the  same 
power  that  made  the  grant ;  the  right  to  authorize  canal 
companies  to  sell  water ;  and  the  right  to  reject  or  revise 
the  grant  at  the  pleasure  of  the  granting  power  where 
the  flow  was  too  great  or  not  sufficient  or  not  needed. 

As  early  as  December  4,  1850,  the  General  Assembly 
of  the  State  of  Deseret  passed  an  act  which  provided, 
"  That  Ezra  T.  Benson  is  hereby  granted  the  exclusive 
privilege  of  controlling  the  waters  in  Tooele  Valley, 
Tooele  County,  known  as  Twin  Springs,  also  the  waters 
that  issue  from  a  spring  called  Rock  Spring  in  said  val- 
ley and  county  for  mills  and  irrigation  purposes."  On 
the  same  day  a  similar  act  was  passed  providing  "  That 
Brigham  Young  have  the  sole  control  of  City  Creek  and 


WATER  LEGISLATION  1849-1880  47 

Canyon,  that  he  pay  into  the  public  treasury  the  sum  of 
five  hundred  dollars  therefor." 

Here  are  two  grants  in  which  exclusive  control  of  the 
entire  streams  was  given.  No  argument  is  presented 
to  show  that  the  grants  were  not  excessive  because  they 
probably  were,  but  when  usage  is  based  on  a  franchise 
the  amount  can  be  revised  to  the  actual  needs.  Heber 
C.  Kimball  was  granted  the  privilege  of  conveying  the 
waters  of  Mill  Creek  to  a  convenient  point  "  and  appro- 
priating them  to  the  use  of  a  saw  mill,  a  grist  mill  and 
other  machinery."  Section  II  of  the  same  act  pro- 
vides that  "  Nothing  herein  contained  shall  prevent  the 
waters  aforesaid  from  being  used  whenever  and  wher- 
ever it  is  necessary  for  irrigating."  Here  again  we  have 
a  restricted  use  of  the  water  for  power  purposes  with  a 
preference  right  for  irrigation.  These  grants  were  aft- 
erward confirmed  by  territorial  legislation. 

On  February  3rd  and  4th  of  1851,  Willard  Richards 
and  Brigham  Young  respectively  were  granted  the  wa- 
ters of  Mill  Creek  for  irrigation  and  power  purposes, 
but  Brigham  Young  was  to  divert  the  water  below  NefFs 
Mill.  February  18,  1852,  the  inhabitants  of  Dry  Creek 
in  Utah  County  obtained  the  right  to  take  out  one- 
third  of  the  waters  of  American  Creek  for  use  of 
the  Dry  Creek  settlement  and  for  the  purpose  of 
irrigation.  In  this  instance  the  legislature  restricted 
the  amount  of  water  to  one-third  of  the  stream  and 
the  water  was  to  be  used  by  the  settlers  of  Dry  Creek 
settlement.  Here  we  have  a  limitation  of  the  amount 
of  water  that  can  be  appropriated  in  fractions  of  the 
stream.  It  has,  however,  the  distinct  disadvantage  of 


48      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

giving  title  to  the  early  waters  beyond  the  actual  need 
and  raising  a  legal  barrier  to  the  storage  of  the  spring 
run-off  reservoirs.  The  territory  where  the  water  was 
to  be  used,  while  not  limited  in  detail,  is  limited  in 
general  to  the  settlement,  which,  probably,  is  as  far 
as  it  could  be  carried  at  that  time. 

The  Provo  Canal  and  Irrigation  Company  was  incor- 
porated by  the  legislature,  Jan.  17,  1853,  and  granted 
the  usual  powers  of  a  corporation.  With  special  ref- 
erence to  irrigation,  navigation  and  power  it  was  author- 
ized to  divert  one-half  of  the  waters  of  Provo  River  as 
near  the  mouth  of  the  canyon  on  the  north  side  of  the 
stream  as  possible.  The  act  says  that  the  directors  shall 
have  power  to  sell  stock  and  "  to  use  water  for  the  irri- 
gation of  lands,  for  mills  and  machinery  of  any  kind  and 
for  navigation  and  for  all  other  lawful  purposes  what- 
soever. It  may  sell,  lease,  and  dispose  of  the  same  or 
any  portion  thereof  for  any  of  the  above  purposes." 

This  is  the  first  irrigation  corporation  organized  in 
the  State,  and  as  the  incorporators  were  not  citizens  of 
Utah  County  and  furthermore  since  they  were  author- 
ized to  sell  water  or  power,  it  is  possibly  the  first  com- 
mercial charter  granted  in  the  territory. 

On  January  19,  1854,  the  territorial  legislature 
passed  an  act  authorizing  the  construction  of  a  canal 
from  Utah  Lake  to  Salt  Lake  City,  approaching  very 
closely  the  idea  embodied  in  making  water  rights  lien 
on  the  land,  considering  the  fact  that  the  occupants  in 
the  territory  did  not  possess  title  to  their  lands.  It 
also  embodied  as  far  as  possible  the  idea  in  the  Carey 
Act  passed  by  the  Federal  Government  in  1894,  re- 
quiring new  settlers  to  assume  the  burden  of  canal  con- 


WATER  LEGISLATION  1849-1880  49 

struction  upon  entering  lands  under  the  canal  subject 
to  water.  The  canal  was  to  connect  Utah  Lake  and  Salt 
Lake  and  to  supply  water  for  irrigation,  navigation  and 
power.  The  commission  to  have  charge  of  the  work 
was  named  by  the  legislature.  The  act  itself  named  the 
course  of  the  canal  in  general  requiring  that  it  run  to 
the  west  of  the  Jordan  as  near  the  base  of  the  mountains 
as  possible.  The  definite  location  is  left  to  the  com- 
mission. The  canal  was  to  be  of  sufficient  depth  and 
width  to  carry  boats  drawing  water  two  and  one-half  feet 
deep  and  twelve  feet  wide.  Locks  were  provided  for. 
The  act  also  provides  that  the  commissioners  "  shall 
survey  the  lands  which  may  be  benefited  by  the  con- 
struction of  said  canal,  upon  each  side  thereof;  like- 
wise take  into  consideration  the  benefit  arising  to  pres- 
ent holders  of  land  claims,  and  apportion  the  land  claims 
according  to  the  estimated  expense  and  cost  of  said 
canal."  This  is  an  early  recognition  of  the  fact  that 
men  will  take  up  land  and  hold  it  without  purchasing 
water  rights  until  the  company  is  bankrupt  in  the  hope 
that  water  can  be  purchased  at  bankruptcy  prices.  The 
legislature  attempted  to  protect  the  corporation  from 
such  conditions.  This  is  an  early  recognition  of  the 
principle  embodied  in  the  irrigation  district  organiza- 
tion. So  far  as  its  authority  extended  the  law  also  re- 
quired new  settlers  to  assume  their  proportion  of  the 
burden.  The  weak  part  of  the  whole  scheme  was  that 
the  settlers  did  not  have  title  to  their  lands  and  the  terri- 
torial legislature  had  no  authority  over  the  disposal  of 
Federal  lands.  In  case  the  settlers  refused  to  pay 
their  share  the  only  alternate  was  to  refuse  to  deliver 
water  which  the  act  authorized  the  company  to  do. 


50      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  authority  for  a  lien  on  the  land  was  lacking  but  a 
careful  study  of  the  law  leaves  no  doubt  that  the  idea 
was  present  in  the  mind  of  the  legislative  body. 

The  Cottonwood  Canal  Company  was  incorporated 
by  legislative  enactment  Jan.  15,  1855.  The  company 
was  authorized  to  construct  a  canal  on  the  east  side  of 
Salt  Lake  Valley  for  irrigation,  navigation  and  power. 
It  was  also  authorized  to  divert  one  half  the  water  of 
Cottonwood  Creek.  The  corporation  was  to  have  the 
entire  control  and  management  of  all  waters  thus  taken 
out  and  may  use  the  same  for  the  irrigation  of  lands, 
for  mills  and  machinery  of  any  kind  and  for  navigation 
and  all  other  lawful  purposes  whatsoever  and  have  the 
right  of  way  for  two  paths  and  access  to  and  from  the 
same;  and  may  sell,  lease  and  dispose  of  the  same  or 
any  portion  thereof  for  any  or  all  of  the  above  purposes 
on  such  terms  and  on  such  conditions  as  the  parties  may 
agree.  The  idea  back  of  this  project  seems  to  have 
been  commercial  and  fundamentally  at  variance  with 
the  general  practice  of  the  territory. 

On  December  27,  1855,  the  legislature  granted  to 
Aaron  Johnson  and  others  "  whom  they  may  associate 
with  them,  authority  to  take  one  third  of  the  waters  from 
the  warm  stream  of  Spanish  Fork  City  and  convey  the 
same  in  the  best  possible  route  to  a  tract  of  land  known 
as  Springville  survey,  and  contract  the  same  for  irriga- 
tion purposes  during  the  purposes  (pleasure)  of  the 
legislature."  This  is  in  fact  a  mutual  company  al- 
though it  takes  on  the  form  of  a  corporation.  It  desig- 
nates the  amount  of  water  that  may  be  diverted  and  the 
locality  in  general  where  it  must  be  used. 

The  Jordan  Irrigation  Company  was  chartered  by 


WATER  LEGISLATION  1849-1880  51 

the  legislature,  January  17,  1862,  to  take  water  in  both 
sides  of  the  Jordan  River  about  one  half  mile  above 
North  Temple  Street  (amended  on  Jan.  7,  1865,  to 
twelve  miles)  for  irrigation  or  power.  The  organiza- 
tion was  given  the  usual  form  and  powers  granted  a 
corporation.  It  has  a  board  of  directors  authorized  to 
sell  or  lease  the  water  and  power  and  to  levy  and  to 
collect  a  tax  upon  all  lands  benefited  by  the  waters  of 
the  system.  The  company  was  also  authorized  to  sell 
stock  to  carry  on  the  work.  The  stock-holders  were  en- 
titled to  vote  and  enter  into  the  control  of  the  corpora- 
tion. This  has  all  the  features  of  a  regular  stock  water 
company  but  has  in  addition  a  peculiar  provision  which 
permits  taxes  to  be  levied  upon  the  lands  benefited  but 
does  not  provide  that  tax  payers  shall  have  any  voice 
in  the  company  unless  they  purchase  the  stock,  an 
obviously  unjust  provision. 

A  general  provision  for  the  incorporation  and  organ- 
ization of  Irrigation  districts  was  embodied  in  the  Act 
passed  January  20,  1865.  The  provisions  of  the  act 
and  its  working  will  be  treated  in  a  separate  chapter. 

The  last  one  of  these  special  acts  creating  irrigation 
companies  was  enacted  January  18,  1867.  This  was 
probably  due  to  the  fact  that  Congress  passed  a  law 
prohibiting  territorial  legislatures  from  granting  chart- 
ers by  special  act.  It  required  that  such  grants  should 
be  by  a  general  law  and  open  to  all.  The  Deseret  Irri- 
gation and  Navigation  Company  was  granted  a  charter 
upon  the  above  date.  It  was  organized  according  to 
the  usual  form  of  corporations  and  with  ordinary 
powers.  Its  particular  purpose  was  to  build  canals  for 
irrigation,  navigation,  and  power  purposes.  It  was  au- 


52      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

thorized  to  sell  a  million  dollars  of  stock  if  necessary 
which  was  to  be  "  deemed  personal  property."  This 
stock  was  to  be  used  for  the  construction  of  canals,  and 
gave  to  the  holders  a  vote  in  proportion  to  their  holdings 
in  the  election  of  directors  and  in  the  general  manage- 
ment of  the  company.  The  size  of  the  main  canal  was 
to  be  at  least  three  feet  deep  with  a  width  of  twenty 
feet  at  the  bottom  with  exceptions  where  there  was  a 
rapid  flow.  It  was  authorized  to  sell  water  and  power 
and  conduct  a  system  of  transportation  by  water. 

These  corporations  organized  by  the  legislature  with 
power  to  build  canals  and  sell  the  water  are  notable 
exceptions  from  the  thousands  of  mutual  canals  con- 
structed by  the  farmers  themselves  to  secure  water  to 
irrigate  their  own  farms.  As  a  rule  these  corporations 
were  intended  as  commercial  enterprises. 

The  foregoing  illustrates  the  number  of  large  pro- 
jects contemplated,  most  of  which  were  never  under- 
taken. In  fact,  for  twenty  years  only  small  ditches 
were  constructed  and  that  seems  to  have  been  the  reason 
why  the  irrigation  district  act  was  passed.  To  encour- 
age construction  of  large  canals  subsidies  were  granted 
by  the  counties  and  the  territory.  January  30,  1852, 
the  territorial  legislature  at  its  first  session  passed  an 
act  providing  that  "  The  Territorial  Road  Commission 
is  hereby  authorized  to  draw  from  the  public  treasury 
any  moneys  not  otherwise  appropriated,  to  the  amount 
of  two  thousand  dollars  and  proceed  forthwith  to  lay 
out  the  same  for  the  completion  of  the  Big  Cottonwood 
Canal."  Again  in  1853  another  act  reads :  "  The  Terri- 
torial Road  Commission  is  hereby  authorized  to  draw 
money  from  the  public  treasury  and  expend  it  for  the 


WATER  LEGISLATION  1849-1880  53 

completion  of  the  Big  Cottonwood  Canal  and  keep  a 
correct  account  of  all  moneys  thus  expended  and  yearly 
present  it  to  the  auditor  of  Public  Accounts,  on  or  be- 
fore the  first  day  of  October  until  said  Canal  shall  be 
completed."  Thus  in  the  very  beginnings  of  the  new 
territory  it  began  to  subsidize  irrigation,  something  that 
every  nation  has  had  to  do  where  irrigation  is  essential 
to  agricultural  growth. 

Little  new  legislation  was  passed  from  1865  to  1880. 
The  law  of  1880  in  form  was  a  lawyers'  act  and  a 
marked  step  in  retrogression.  For  nearly  thirty  years 
the  territory  of  Utah,  in  so  far  as  any  law  was  applied, 
had  controlled  its  water  resources  under  the  law  of  1852, 
which  was  the  embodiment  of  the  early  ecclesiastical 
requirements  of  the  early  settlers  and  also  the  customs 
which  had  developed  in  the  use  of  water.  The  act  of 
1852  gave  extensive  powers  of  water  control  to  the 
county  courts  of  the  respective  counties.  This  power 
had  been  fully  exercised  in  Salt  Lake  County  and  in  a 
less  degree  in  Weber,  Utah,  Davis,  Box  Elder,  Sanpete 
and  Cache  counties,  but  in  the  more  remote  counties  not 
at  all.  This  was  perhaps  due  to  the  fact  that  there  was 
plenty  of  water  and  few  settlers.  It  did,  however,  grant 
to  each  county  court  the  authority,  and  as  time  went  on, 
if  not  repealed,  would  have  been  fully  exercised.  The 
act  of  1852,  as  already  indicated,  gave  the  county  court 
full  and  complete  control  over  the  waters  within  the 
county.  The  idea  was  for  the  court  to  control  the  waters 
so  as  to  best  develop  the  settlement  of  the  territory  and 
to  distribute  the  water  as  widely  as  possible  for  irriga- 
tions. This  act  was  based  upon  the  theory  that  the 
waters  of  the  territory  belonged  to  tkQ  public  or  rather 


54      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

to  the  State  (Territory),  the  only  sound  basis  to  act 
upon. 

In  the  control  of  the  waters  of  the  territory,  a  form  of 
public  property,  the  court  aimed  to  serve  the  public  in- 
terests. The  act  of  1880  on  the  contrary  was  based 
upon  the  theory  that  the  waters  of  the  State  when  ap- 
propriated became  private  property.  In  the  act  of  1852 
the  waters  were  placed  directly  under  the  control  of  the 
county  courts  to  distribute  in  the  interests  of  the  public 
property,  subject  to  an  economic  and  beneficial  usage. 
By  the  act  of  1880  the  probate  judge  was  eliminated 
and  the  county  selectmen  were  to  take  the  place  of  the 
county  court.  They  were,  however,  given  power  to 
adjudicate  disputes  as  far  as  possible,  with  the  litigants 
having  the  right  to  appeal  to  a  court  of  competent  juris- 
diction. The  selectmen,  therefore,  were  merely  acting 
as  a  court  to  settle  disputes  as  to  property  rights  which 
now  belonged  to  the  individual.  For  the  act  goes  on  to 
say  in  Section  8  in  referring  to  water  rights  "  and  such 
rights  may  be  appurtenant  to  the  land  upon  which  it  is 
used  or  it  may  be  personal  property,  at  the  option  of  the 
rightful  owner  of  such  right  and  a  change  in  the  place  of 
use  of  water  shall  in  no  manner  affect  the  validity  of 
any  person's  right  to  use  water,  but  no  person  shall 
change  the  place  of  use  of  water  to  the  damage  of  his 
co-owners  in  such  right  without  just  compensation." 
Of  course  up  to  this  time  there  has  been  petty  trading, 
and  buying  and  selling  of  water,  but  it  was  only  an 
insignificant  part  of  the  whole  and  it  was  not  based 
upon  any  legal  right  or  established  custom  to  do  so.  It 
was  the  rule  for  the  water  to  pass  with  the  land,  and  in 
the  main  it  had  been  regarded  as  appurtenant.  Here, 


WATER  LEGISLATION  1849-1880  55 

however,  was  a  general  provision  of  law  to  make  it 
personal  property  and  to  separate  it  from  the  land  at 
the  pleasure  of  the  owner.  At  the  option  of  the  owner 
the  water  became  personal  property  and  subject  to  trans- 
fer by  the  mere  delivery  of  a  certificate  of  sale. 

Under  certain  circumstances  in  a  new  country,  it  may 
be  desirable  for  the  State  to  permit  the  transfer  of  the 
right  to  use  water  from  one  piece  of  land  to  another  by 
special  permission  of  the  state  authorities  having  in 
control  the  water  affairs.  It  should  be  allowed  only 
after  special  investigation  and  under  strict  regulation. 
For  a  state  to  permit  such  wholesale  trading  and  traffick- 
ing in  water  as  this  act  contemplates  is  a  mistake  of  the 
gravest  magnitude.  In  order  to  protect  the  present  and 
future  welfare  of  agriculture  the  water  should  be  appur- 
tenant to  the  land.  The  State  should  watch  carefully 
that  under  no  circumstances  should  conditions  be  per- 
mitted to  arise  where  the  ownership  of  the  land  and  the 
water  would  pass  permanently  into  separate  hands. 
Under  such  arrangements  the  proprietors  of  the  soil 
would  enter  upon  a  state  of  servitude  to  the  owners  of 
the  water.  Where  water  is  scarce  and  land  plentiful 
this  might  easily  come  about.  In  European  countries 
in  order  to  avoid  such  a  situation  arising,  special  pre- 
cautions are  taken  to  have  the  water  appurtenant  to  the 
land  or  else  to  have  the  state  own  the  irrigating  system 
with  the  farmers  possessed  of  an  economic  and  beneficial 
right  of  usage  of  the  water.  When  this  does  not  exist 
the  right  to  carry  water  and  sell  it  is  very  carefully 
supervised. 

The  question  naturally  arises,  why  this  radical  change 
in  the  law  ?  It  can  be  explained  only  by  the  fact  that 


56      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

serious  difficulties  were  arising  between  the  citizens  of 
Utah  and  the  Federal  Government.  All  the  executive 
officers  of  the  territory  had  long  since  been  appointed 
from  non-residents.  Threats  were  made  that  Congress 
would  take  the  franchise  away  and  either  appoint  all 
the  officials  both  local  and  general  in  the  territory  or 
leave  them  to  the  election  of  the  non-Mormons,  very  few 
of  whom  were  interested  in  agriculture.  The  most 
natural  thing,  therefore,  was  to  repeal  the  authority 
exercised  by  the  county  courts,  declare  the  water  rights 
vested  and  leave  them,  if  difficulties  arose,  to  the  courts. 

Another  provision  of  the  act  required  that  it  take 
seven  years  of  non-use  of  water  before  the  right  had 
been  abandoned.  This  is  certainly  an  abnormally  long 
time  in  an  arid  land  where  water  is  so  valuable. 

The  law  of  1880,  however,  did  have  an  excellent  pro- 
vision. It  provided  that  the  selectmen  of  the  county 
were  authorized  to  have  all  streams  measured,  the  rights 
determined  and  certificates  issued  and  recorded.  If  this 
provision  had  gone  into  effect  the  streams  would  have 
been  properly  divided  and  adjudicated  by  now.  This 
act  like  the  act  of  1852  was  questioned  as  granting 
judicial  authority  to  an  administrative  body  not  in- 
cluded in  the  organic  act  and  it  was  not  therefore  en- 
forced and  nothing  was  done  and  little  has  been  done 
since. 


CHAPTER  V 

COUNTY  COURTS  AND  THE  CONTROL  OF  IRRIGATION  WATER 

Soon  after  the  settlement  of  the  territory  it  was 
found  by  experience  that  some  legal  control  must  be 
exercised  over  the  appropriation  of  the  natural  re- 
sources, and  the  territorial  legislature  in  1852  conferred 
the  authority  of  such  control  upon  the  County  Courts. 
Chapter  1,  section  38  of  the  session  laws  of  1852  says: 
"  The  County  Court  has  control  over  all  timber,  water 
privileges  or  any  water  course  or  creek;  to  grant  mill 
sites,  and  exercise  such  power  as  shall  best  preserve  the 
timber  and  subserve  the  interests  of  their  settlements  in 
the  distribution  of  water  for  irrigation  or  other  pur- 
poses." 

The  powers  here  delegated  to  the  courts,  which  con- 
sisted of  a  probate  judge  and  three  selectmen,  were  exer- 
cised extensively,  and,  in  the  more  densely  populated 
counties,  the  control  was  continued  until  the  law  was 
repealed  in  1880.  Many  reasons  were  brought  forward 
for  the  repeal  of  the  act  of  1852.  Leading  lawyers  held 
that  the  legislature  lacked  authority  to  grant  such  powers 
to  the  County  Courts  because  the  act  of  Congress  estab- 
lishing the  territory  and  providing  for  its  courts  failed 
to  include  a  grant  of  such  powers  to  the  county  courts. 
At  the  same  time  it  must  be  admitted  that  the  adminis- 
trative and  judicial  control  exercised  by  these  courts 

57 


58      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

over  water  control  was  very  efficient.  The  success  un- 
doubtedly was  due  to  the  fact  that  the  work  was  almost 
entirely  administrative  in  its  nature  and  three  fourths 
of  the  membership  of  this  court  was  made  up  of  prac- 
tical men  who  understood  the  problems. 

An  effort  will  be  made  in  the  chapter  to  bring  out 
through  water  cases  actually  dealt  with  some  of  the 
principles  established  by  County  Courts.  Out  of  the 
thousands  of  cases  dealt  with,  space  limits  the  citations 
to  a  very  few. 

WATER-MASTERS 

Several  counties  were  organized  at  the  first  session  of 
the  territorial  legislature.  Among  the  first  acts  per- 
formed by  the  county  court  in  assuming  control  of  the 
waters  of  their  respective  counties  was  the  appointment 
of  water-masters.  These  agents  were  to  carry  out  the 
orders  of  the  courts  and  personally  to  see  that  the  water 
was  properly  distributed.  This  was  all  the  more  neces- 
sary when  we  understand  that  appropriations  of  water, 
to  a  considerable  extent,  had  been  made  during  the  pre- 
ceding five  years  of  settlement.  In  March  1852  the 
County  Court  of  Davis  County  appointed  fifteen  men  as 
water-masters  or  supervisors  to  have  control  over  "  the 
several  creeks  in  Davis  County  for  irrigation  purposes." 
In  the  appointment,  each  water-master  was  given  a 
definite  stream  to  supervise.  In  April,  Salt  Lake 
County  appointed  twelve  men  as  water-masters.  Weber 
County  in  June  made  similar  appointments  for  the 
county  outside  of  Ogden  City.  In  order  to  define  their 
duties  which  were  similar  in  all  counties  and  to  enable 
them  to  enforce  the  authority  invested  in  them  the  court 


THE  CONTROL  OF  IRRIGATION  WATER  59 

passed  the  following  regulation :  "  Be  it  ordered  by  the 
County  Court  of  Weber  County  that  if  any  person  or 
persons  shall  use  water,  taken  from  any  stream  in  Weber 
County  for  public  use  in  irrigation  without  the  consent 
of  the  overseer  (water-master)  or  committee  of  the  same 
he  shall  be  subject  to  a  fine  in  any  sum  not  less  than 
three  nor  more  than  twenty-five  dollars  at  the  discretion 
of  the  court  having  jurisdiction  therein." 

Box  Elder  County  Court  appointed  water-masters  in 
1856,  Cache  County  in  1860,  and  other  counties  fol- 
lowed the  same  practice  as  they  were  organized.  In 
most  of  the  counties  outside  of  the  cities  the  county 
courts  exercised  full  and  complete  jurisdiction  over  the 
waters  until  such  authority  was  taken  away  from  them 
by  the  law  of  1880.  The  courts  appointed  the  water- 
masters  on  their  own  initiative  or  upon  recommendation. 
If  a  mistake  had  been  made  in  the  appointment  of  a  man 
whose  services  were  unsatisfactory  and  a  petition  was 
presented  for  his  removal  the  policy  was  to  grant  it 
unless  a  good  reason  existed  why  it  should  not  receive 
favorable  consideration. 

The  plan  of  having  the  court  act  independently  and 
without  previous  consultation  with  the  irrigators,  in  ap- 
pointing the  water-masters  did  not  appear  to  give  gen- 
eral satisfaction,  so  Davis  County  Court  began  in  1876 
a  plan  that  became  general.  The  county  was  divided 
into  districts  including  the  areas  supplied  with  water 
from  a  given  stream  or  spring  and  the  users  of  water 
in  each  district  were  asked  to  meet  in  a  mass  meeting 
and  name  a  man  to  be  appointed  for  the  district  for  the 
ensuing  year.  The  court  agreed  to  appoint  the  men  so 
nominated  bv  the  several  districts.  It  was  of  course 


60      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

specified  that  the  water-masters  so  appointed  whether 
directly  by  the  court  or  upon  the  recommendation  of  the 
irrigators  were  to  be  under  the  control  and  supervision 
of  the  county  court  itself  and  not  subject  to  those  who 
recommended  them. 

It  was  ordinarily  arranged  that  one  of  the  selectmen 
as  part  of  his  subdivision  of  the  work  should  have  con- 
trol of  the  water-masters.  Box  Elder  County  on  July 
6,  1874,  worked  out  a  logical  system  by  the  appointment 
of  a  head  or  supervising  water-master  whose  duty  it  was 
to  have  general  control  of  the  water  of  the  whole  county 
and  to  instruct  and  to  direct  the  water-masters  of  the  sev- 
eral districts.  In  all  counties  the  water-masters  were 
appointed  for  a  year  but  were  really  subject  to  dismissal 
by  the  court  at  any  time  for  cause. 

With  the  exception  of  the  head  water-master  in  Box 
Elder  County,  the  water-masters  were  paid  by  the  farm- 
ers. A  levy  of  so  much  was  placed  upon  each  acre  of 
land  to  be  paid  by  the  farmer  ordinarily  in  the  fall  after 
harvest.  In  the  early  days  of  the  settlement  of  the 
territory  the  payment  was  made  in  some  form  of  pro- 
duce, usually  wheat.  In  making  the  levy  each  district 
was  allowed  to  fix  the  amount  per  acre,  according  to  its 
local  needs,  except  that  sufficient  must  be  levied  to  pay 
the  expenses,  otherwise  the  county  court  would  intervene 
and  raise  the  levy.  The  same  policy  under  supervision 
of  the  water-master  was  pursued  in  respect  to  cleaning 
out  the  canals  and  ditches. 

GRANTS 

In  early  territorial  days  in  the  small  projects  or 
canals,  destined  to  irrigate  small  areas  the  bishop  or  a 


THE  CONTROL  OP  IRRIGATION  WATER  61 

committee  of  the  community  divided  the  water.  But  in 
the  more  important  projects,  especially  those  of  Salt 
Lake  County,  the  high  authorities  of  the  Mormon 
Church  took  an  active  part  in  promotion,  construction, 
and  control,  Brigham  Young  frequently  assuming  lead- 
ership in  the  larger  and  more  difficult  projects.  In  fact 
the  Mormon  Church,  often  appropriated  money  out  of 
the  funds  of  the  Church  for  the  completion  of  irrigation 
canals  so  essential  to  the  welfare  and  success  of  coloniza- 
tion schemes.  These  appropriations  sometimes  took  the 
form  of  loans  and  at  other  times  outright  gifts.  When 
the  Federal  Government  established  a  territorial  govern- 
ment the  control  of  the  waters  of  the  territory  were 
quickly  taken  over  for  administration  by  the  Civil 
power.  In  fact  the  people  of  the  territory  had  at- 
tempted to  provide  a  civil  government  for  themselves  in 
the  hopes  that  the  National  Government  would  recog- 
nize their  effort  in  the  so-called  State  of  Deseret.  A 
constitution  was  adopted.  Utah  was  then  a  long  way 
from  Washington  in  miles  and  time  and  while  Congress 
was  considering  the  question  of  admission  the  legisla- 
ture, which  had  been  elected,  enacted  laws  organizing 
counties  and  cities  and  providing  for  the  control  of  the 
natural  resources,  particularly  water,  timber,  and  graz- 
ing. The  proposed  State  was  denied  admission  so  the 
laws  became  null  but  they  were  re-enacted  just  as  soon 
as  the  territorial  legislature  convened.  Thus  while  they 
legally  only  date  back  to  1852  in  fact  they  go  back  two 
or  three  years  earlier.  Likewise  the  grants  of  water 
power  or  natural  resources  made  by  the  State  of 
Deseret  were  reaffirmed  by  the  territorial  legislature. 
Grants  by  the  legislatures  have  already  been  considered, 


62      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

therefore  only  grants  made  by  the  counties  under  the  act 
of  1852  are  considered  in  this  chapter. 

In  the  mining  industry  in  the  West,  it  had  been  the 
policy  when  a  man  asserted  a  right  to  a  mineral  claim  to 
post  a  notice  on  the  land  claimed.  The  same  method 
has  been  followed  in  many  states  from  the  beginning  in 
respect  to  the  appropriation  of  water.  A  notice  was 
posted  on  the  natural  stream  at  the  point  where  it  was 
expected  to  divert  the  water  into  the  proposed  canal. 
Obviously  such  a  notice  is  valueless,  for  who  can  be  ex- 
pected to  see  a  notice  of  appropriation  buried  deep  in 
willows  and  underbrush  and  placed  at  some  distance 
from  the  public  highway  ?  In  the  early  history  of  Utah, 
a  like  policy  was  inaugurated,  but  it  was  at  once  seen 
to  be  entirely  unsuited  for  notice  of  a  water  appropria- 
tion. If  another  locator  went  on  to  a  mining  claim  he 
could  see  the  notice  which  had  been  previously  posted 
there,  but  in  the  case  of  water  a  man  contemplating 
appropriation  may  undertake  to  divert  at  another  point 
on  the  stream  and  never  be  aware  of  the  posted  notice. 
Defects  of  this  system  were  apparent  even  in  the  small 
compact  communities  of  Utah.  On  July  31,  1852,  the 
County  Court  of  Salt  Lake  County  passed  the  following 
resolution.  "  Be  it  ordered  that  in  the  future  the  notice 
to  bring  petition  for  privileges  by  the  court  be  adver- 
tised in  the  Deseret  News  at  least  twice  before  the  sitting 
of  the  court  at  which  the  said  petitions  are  intended  to 
be  represented.77  The  Deseret  News  was  the  only  news- 
paper in  the  territory  at  that  date.  In  other  communi- 
ties where  there  were  no  papers  notices  were  posted  in 
public  places  or  announcements  made  in  public  as- 
semblies. Even  Church  services  were  utilized  for  such 


THE  CONTROL  OF  IRRIGATION  WATER  63 

purposes.  These  precautions  were  taken  in  order  that 
water  would  not  be  appropriated  without  specific  orders 
of  the  County  Courts,  for  the  courts  claimed  the  right 
not  only  to  grant  but  to  reject  any  petition  presented. 

Before  the  establishment  of  the  County  Courts,  large 
bodies  of  water  had  been  appropriated.  The  fact,  how- 
ever, that  the  water  had  been  appropriated  prior  to  the 
establishment  of  jurisdiction  of  the  courts  over  the 
streams  did  not  prevent  the  county  courts  from  assuming 
jurisdiction  over  the  streams.  If  the  use  was  a  proper 
one  and  the  amount  used  was  economic  it  was  left  undis- 
turbed but  in  case  it  did  not  represent  beneficial  and 
economic  use  the  court  would  investigate  and  cause 
redistribution  or  a  reduction. 

The  mountain  streams  flowing  down  steep  canyons 
abounded  in  waterfalls  and  afforded  excellent  opportun- 
ities for  power  plants.  The  young  commonwealth  was 
in  great  need  of  saw  mills  and  flouring  mills  and  the 
necessary  power  to  run  the  machinery  was  at  hand  from 
the  mountain  streams.  Long  before  the  waters  reached 
the  point  where  they  were  diverted  for  irrigation  they 
could  be  utilized  to  develop  this  necessary  power.  The 
county  courts  assumed  jurisdiction  over  these  power 
sites  and  undertook  to  administer  them  in  the  interests 
of  the  public  and  also  to  prevent  injury  to  agriculture. 
It  would  be  useless  to  recite  all  the  cases  involving  a 
grant  of  water  power  by  the  several  counties.  A  few, 
however,  will  be  given  to  illustrate  the  policy. 

As  early  as  1852  A.  P.  Rockwell,  G.  W.  Parrish  and 
A.  Gardner  petitioned  separately  to  the  County  Court 
of  Salt  Lake  County  for  the  right  to  build  saw  mills  and 
shingle  mills  at  different  points  of  Mill  Creek.  The 


64      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

petitions  were  granted.  In  the  same  year  similar  priv- 
ileges for  a  saw  mill  and  flouring  mill  were  granted  by 
the  Utah  County  Court  on  Provo  River,  and  on  the  Span- 
ish Fork  River.  The  other  counties  pursued  the  same 
policy  and  men  were  not  allowed  to  erect  mills  upon  the 
natural  streams  or  to  obtain  water  from  them  for  power 
without  first  obtaining  a  grant  from  the  court  of  the 
county  in  which  the  stream  was  located.  John  Taylor 
was  compelled  to  obtain  permission  to  place  a  mill  upon 
his  own  land  where  he  intended  to  use  a  stream  flowing 
through  his  own  premises.  In  1866  Charles  Crisman 
petitioned  for  the  use  of  water  from  Mill  Creek  to  pro- 
pel a  flouring  mill,  the  court  granted  it  on  the  following 
conditions :  "  That  the  use  and  benefit  of  said  waters  of 
said  creek  is  granted  unto  said  Charles  Crisman  to  pro- 
pel said  mill  provided  the  said  Crisman  will  in  no  case 
dam  such  stream  more  than  two  feet  when  he  takes  out 
the  water  into  his  race  in  a  low  stage  of  water  and  that 
he  have  fifteen  feet  space  for  the  water  to  tumble  over 
at  high  water  and  that  said  Crisman  be  responsible  for 
all  damages  that  he  may  do  to  any  lands  located  upon 
said  creek  or  to  the  state  road."  In  a  petition  by  A. 
Thome  to  the  county  court  of  Davis  County  for  the  use 
of  water  for  power  purposes  to  operate  a  mill  to  grind 
sugar  cane  it  was  granted  on  the  condition  "  That  peti- 
tioner does  not  interfere  with  irrigation  or  the  conven- 
ience of  families  where  they  use  the  water  for  house- 
hold purposes."  This  policy  was  pursued  by  the  coun- 
ties until  1880  when  the  law  took  the  authority  away 
from  the  courts.  The  great  advantage  of  such  a  system 
is  that  the  men  who  desire  to  secure  grants  for  the  opera- 
tion of  mills  or  machinery  of  any  sort  can  find  out  in 


THE  CONTROL  OF  IRRIGATION  WATER  65 

advance  by  petition  whether  they  can  secure  the  neces- 
sary power  and  under  what  conditions,  so  that  it  is  not 
necessary  to  expend  large  sums  to  excavate  canals  and 
erect  mills  only  to  have  some  one  secure  a  restraining 
order  just  as  the  project  is  completed. 

The  grants  for  power  sites  of  these  early  days  were 
comparatively  few,  but  the  grants  for  irrigation  pur- 
poses were  large  in  number.  Before  making  water 
grants,  both  the  members  of  the  county  courts  and  the 
commissions  appointed  by  the  courts  made  very  careful 
examination  into  each  request  if  the  least  doubt  existed. 
Restrictions  were  placed  around  the  grants  to  protect 
the  public  interest.  In  general  the  good  of  the  com- 
munity was  always  held  in  mind  rather  than  that  of  the 
individual.  It  is  in  the  study  of  these  restrictions  that 
is  often  revealed  the  policies  pursued. 

September  20,  1852,  Zera  Pulsifer  and  several  others 
petitioned  for  the  privilege  of  installing  a  dam  across 
the  Jordan  River  for  the  purpose  of  taking  out  irriga- 
tion water.  The  petition  was  granted  on  the  condition 
"  that  all  persons  interested  have  equal  privileges  and 
further  provided  that  said  dam  shall  not  damage  the 
surrounding  inhabitants  by  causing  the  water  to  over- 
flow the  banks. of  said  stream  or  interfere  with  indi- 
vidual rights  previously  attained." 

In  December  of  the  same  year  Lewis  Wright  was 
granted  the  exclusive  right  of  Bingham  Canyon  Creek 
west  of  Jordan  Mills  for  irrigation  purposes.  In  the 
case  of  the  people  of  the  North  Canyon,  Davis  County, 
for  the  use  of  the  waters  of  Stone  Creek,  the  court  made 
the  grant  of  the  stream  for  the  benefit  of  all  the  residents 
of  the  village  provided  that  the  bishop  of  the  village  shall 


66      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

have  control  and  distribute  the  water  for  the  community. 

A.  Perry  and  others  June  2,  1856,  petitioned  the 
County  Court  of  Box  Elder  for  part  of  the  water  of  Box 
Elder  Creek  for  irrigation  purposes  for  the  benefit  of 
the  settlers  of  Three  Mile  Creek.  The  court  granted  the 
petition  on  the  following  terms :  "  The  said  Perry  and 
others  are  to  enlarge  the  water  ditch  sufficient  to  carry 
the  amount  of  water  required  from  Box  Elder  Canyon  to 
their  farms  at  their  own  expense  and  have  what  surplus 
water  can  be  spared  consistently  for  irrigation  for  the 
term  of  one  year." 

In  Davis  County  in  1856  on  petition  of  the  settlers 
of  North  Mill  Creek  for  a  grant  of  half  of  the  waters  of 
Mill  Creek  the  county  court  appointed  a  committee  to 
investigate  the  amount  of  land  irrigated  by  the  stream 
and  instructed  the  committee  to  divide  the  waters  of 
said  creek  according  to  the  number  of  acres  of  land  to 
be  irrigated  from  said  creek  on  each  side.  The  deci- 
sion of  the  committee  was  to  be  subject  to  the  confirma- 
tion of  the  court.  Here  we  have  the  court  looking  for- 
ward intentionally  to  the  time  when  all  the  land  would 
be  brought  under  cultivation  and  to  the  community 
welfare  rather  than  permitting  a  few  users  to  appro- 
priate all  the  water  they  desired.  Not  only  did  these 
courts  retain  the  right  to  require  a  wide  distribution  of 
the  water,  they  also  maintained  the  right  to  say  where 
the  water  should  be  used  and  when  the  canals  should  be 
completed  as  seen  in  the  following  case.  A.  Gardner  and 
others  were  granted  two  fifths  of  the  waters  of  the 
Jordan  River  to  be  taken  to  the  point  of  the  mountain 
for  irrigation  purposes.  The  Canals  to  be  completed  by 


THE  CONTROL  OF  IRRIGATION  WATER  67 

January  11,  1863.  The  grant  to  be  subject  to  change 
by  this  court  for  the  benefit  of  the  community. 

When  the  facts  were  not  clear  to  the  court,  it  fre- 
quently availed  itself  of  the  services  of  others.  In  April, 
1861,  the  inhabitants  of  Freedom,  Davis  County,  peti- 
tioned the  court  for  portions  of  the  waters  of  Haight 
Creek.  The  court  not  having  the  necessary  information 
before  it  to  make  a  decision  appointed  a  committee  to 
ascertain  the  facts  bearing  upon  the  petition  and  to 
report  to  the  court  at  an  early  date  so  that  a  decision 
could  be  reached  upon  the  petition  presented.  S.  D. 
Cahoon  and  twenty-nine  others  petitioned  the  county 
court  of  Salt  Lake  County,  May  13,  1867,  for  the  waters 
of  Little  Cottonwood  Creek  below  Thomas  A.  Wheeler's 
farm.  Inasmuch  as  this  canal  would  be  below  all  other 
ditches  and  could  not  therefore  interfere  with  the  rights 
of  others  or  appropriated  and  used  waters  the  court 
granted  the  petition.  J.  !N".  Barker,  of  Box  Elder 
County  in  1869  petitioned  for  the  use  of  a  small  stream 
northeast  of  his  farm.  The  petition  was  granted  "  on 
condition  that  the  water-master  shall  direct  the  course 
in  which  said  water  shall  be  conducted  and  that  it  also 
supply  two  families  for  culinary  purposes." 

It  was  a  common  practice  to  require  that  when  grants 
were  made,  the  canals  or  ditches  should  be  constructed 
under  the  supervision  of  the  water-master.  The  benefit 
of  this  plan  being  that  they  might  be  made  to  serve 
other  uses  in  later  years  without  cutting  up  additional 
fields  for  new  canals. 

The  court  also  exercised  the  right  to  grant  limited 
usage.  In  the  petition  of  John  Parker  and  others  "  the 


68      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

court  decided  that  the  water  should  be  granted  to  the 
land  for  which  it  was  asked  up  to  the  first  day  of  July." 
This  is  really  a  grant  of  surplus  water  or  of  early  water, 
when  the  supply  was  abundant. 

The  county  court  even  exercised  control  over  appro- 
priation by  the  cities.  In  1875  Odgen  City,  through  its 
mayor,  petitioned  for  a  right  for  the  city  to  appropriate 
for  city  purposes  a  volume  of  water  ten  feet  wide,  three 
feet  deep  and  flowing  at  a  certain  velocity.  After  a 
careful  investigation  as  to  the  needs  of  the  city  for 
water  the  court  granted  the  petition.  Three  hundred 
and  ninety-three  petitioners  requested  the  court  to  grant 
them  the  privilege  to  appropriate  one  fourth  of  the 
waters  of  the  Jordan  River.  The  petition  was  granted 
on  the  condition  that  the  petitioners  organize  themselves 
into  a  corporation  for  the  purpose  of  control.  They 
were  permitted  to  divert  the  water  above  the  existing 
dam.  The  county  had  paid  for  the  construction  of  the 
dam  in  the  Jordan  and  could  therefore  consistently  grant 
permission  for  its  use  to  new  applicants.  On  March  3, 
1879,  twelve  residents  of  Salt  Lake  County  applied  to 
the  county  court  for  the  water  flowing  from  Coon's  Can- 
yon. The  waters  of  Coon's  Canyon  had  been  previously 
granted  by  the  court  in  1875  to  Peter  Reed  and  others, 
but  they  had  done  nothing  to  appropriate  the  supply  or 
put  it  to  beneficial  use.  The  court  said :  "  It  also  ap- 
pearing that  said  parties  to  whom  this  had  been  previ- 
ously granted  are  residing  below  or  north  and  east  of  the 
Utah  and  Salt  Lake  Canal  and  will  necessarily  depend 
upon  said  canal  for  water  for  irrigation  purposes,  it  is 
therefore  ordered  by  the  court  that  the  said  petition  be 
and  is  hereby  granted." 


THE  CONTROL  OF  IRRIGATION  WATER  69 

The  dam  in  the  Jordan  River  had  been  built  in  the 
spring  of  1873  near  the  southern  limit  of  Salt  Lake 
County  for  the  purpose  of  controlling  the  waters  of  the 
Jordan  and  distributing  them  for  irrigation  purposes. 
Two  days  before  the  law  of  1880  went  into  effect  the 
county  court  of  Salt  Lake  County  made  to  these  canals 
grants  of  water.  It  has  been  charged  that  the  court 
in  doing  this  acted  in  bad  faith.  The  truth  is  that  if 
the  court  had  failed  to  exercise  its  power  it  would  have 
been  recreant  to  its  duty  and  false  to  its  promises.  For 
in  order  to  have  these  canals  constructed,  it  had  prom- 
ised the  men  who  had  invested  large  amounts  of  capital 
in  the  construction  that  such  grants  would  be  made.  So 
on  February  20,  1880,  after  reciting  in  the  introduction 
to  the  resolution  that  such  express  understandings  did 
exist  the  following  decree  was  entered : 

"  It  is  now  ordered  that  said  West  Jordan  Irrigation 
Company  shall  have  the  rights  to  take  water  out  of  said 
dam  to  an  amount  not  exceeding  three-sixteenths  of  the 
waters  of  said  Jordan  River  and  convey  the  same 
through  said  Utah  and  Salt  Lake  Canal  to  the  lands  to 
be  irrigated  thereby  "  and  "  whereas  an  order  of  this 
court  has  hereto  been  made  granting  to  the  owners  of  the 
canal  on  the  west  side  of  said  river  the  right  to  take 
water  out  of  said  dam  not  to  exceed  one-fourth  of  the 
waters  of  said  dam  is  confirmed.  The  right  of  the  canal 
of  the  South  Jordan  Irrigation  Company  was  taken  up. 
This  company  diverted  the  water  about  one  and  one-half 
miles  below  the  Jordan  Dam  and  it  was  decreed  the  right 
to  one-third  of  the  waters  of  the  Jordan  River.  The 
Jordan  and  Salt  Lake  City  Canal  then  being  constructed 
was  granted  one-third  of  the  waters  of  the  Jordan  River 


70      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

to  be  diverted  at  or  near  the  same  place  where  the  South 
Jordan  Canal  is  taken  out  of  said  river." 

These  are  the  final  grants  made  by  the  Salt  Lake 
County  Court.  For  twenty-eight  years  it  had  con- 
trolled the  waters  of  Salt  Lake  County.  The  court  was 
open  at  all  times  for  the  consideration  of  new  grants  or 
the  control  of  old  ones.  The  process  was  inexpensive 
and  compared  with  the  present  system,  eminently  satis- 
factory and  efficient.  The  passage  of  the  law  of  1880 
was  a  great  step  backward  in  water  jurisprudence  for 
the  territory,  a  fact  which  has  never  been  fully  recog- 
nized. The  county  courts  in  water  cases  for  twenty- 
eight  years  expeditiously  administered  substantial  jus- 
tice at  the  minimum  cost.  This  is  all  that  can  be  said 
of  the  most  efficient  tribunal. 

DAMS   AND  CANALS 

The  county  court  took  control  of  the  location  of  dams 
and  canals.  If  it  were  possible  for  a  dam  to  be  so 
placed  as  to  serve  more  than  one  canal  it  was  required 
that  it  should  be  so  located.  In  the  location  of  a  canal 
the  welfare  of  the  community  was  held  paramount,  and 
men  were  not  permitted  to  locate  canals  merely  to  suit 
their  own  convenience.  The  court  itself  or  a  commit- 
tee appointed  by  it  ordinarily  located  the  dams  and  the 
canals.  In  any  event  no  important  dam  or  canal  could 
be  located  without  the  approval  of  the  court. 

In  1852  Zera  Pulsifer  was  granted  the  right  to  place 
a  dam  in  the  Jordan  River  to  divert  water  for  irrigation 
on  condition  that  all  persons  interested  in  the  dam 
should  have  equal  rights.  A  petition  was  presented  by 
3ST.  Haws  and  others  of  Utah  Countv  that  a  dam  be 


THE  CONTROL  OF  IRRIGATION  WATER  71 

removed  from  the  Peeteetneet  Creek.  The  request  was 
opposed  by  James  Pace  and  others  and  after  a  full  hear- 
ing the  court  ordered  the  dam  removed  as  "  expedient  for 
the  general  good  of  the  community  and  as  a  nuisance." 
Sidney  Brooks  presented  a  petition  to  the  county  court 
of  Salt  Lake  County  for  the  privilege  of  making  a 
canal.  The  request  was  opposed  but  granted.  In 
March  1854  a  committee  of  the  court  of  Weber  County 
reported  that  they  had  located  the  Weber  Canal.  The 
court  approved  the  report.  In  1856  thirty  farmers  of 
Salt  Lake  County  petitioned  the  court  for  permission  to 
construct  a  dam  on  the  Jordan  River  about  five  miles 
above  the  Jordan  bridge,  for  the  purpose  of  taking  out 
water  for  irrigation.  The  privilege  was  granted,  on 
condition  that  the  petitioners  assume  responsibility  for 
any  damage  done  in  consequence  of  the  construction  of 
the  dam.  In  1854  the  citizens  of  Brigham  desired  to 
enlarge  or  extend  the  canal  running  north  to  Dicken- 
son's  Farm.  Permission  was  granted  by  the  Box  Elder 
County  Court.  In  1857  the  court  granted  Robert  Knell 
the  privilege  of  constructing  a  dam  in  the  North  Fork 
of  Kays  Creek,  Davis  County,  on  condition  that  he  as- 
sume responsibility  for  any  damages  occasioned  by  the 
breaking  of  the  dam.  F.  Little  was  granted  the  privi- 
leges of  constructing  a  dam  in  the  Jordan  River,  in  1858, 
but  as  its  location  was  within  the  limits  of  Salt  Lake 
City  the  petitioners  were  also  required  to  secure  the  con- 
sent of  the  City  Council  as  well  as  the  consent  of  the 
County  Court.  On  June  6,  1859,  the  water-master  of 
Salt  Lake  City  represented  to  the  court  that  the  flood 
waters  had  washed  out  the  dam  in  Canyon  Creek  and 
that  unless  it  was  replaced  at  once  the  crops  would  suf- 


72      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

fer  for  want  of  irrigation.  The  court  ordered  Ira 
Eldridge  to  undertake  the  construction  of  a  new  dam 
and  to  levy  a  tax  upon  the  users  of  water  to  pay  for  it. 
G.  W.  Hickman  and  others  of  South  Weber,  Davis 
County,  petitioned  the  Court  for  the  privilege  of  taking 
water  for  irrigation  out  of  the  Weber  River.  The 
court  considered  the  matter  very  carefully  and  then  ap- 
pointed a  committee  to  examine  and  locate  the  canal  so 
that  it  would  be  for  the  benefit  of  the  whole  settlement 
and  do  the  least  injury  to  any  person's  property.  The 
committee  was  also  given  power  to  appraise  any  damages 
done  to  property  by  reason  of  right  of  way  or  con- 
struction. 

The  Court  in  1861  was  petitioned  by  the  owners  of 
the  farming  lands  known  as  the  Tenth  Ward  Survey, 
Salt  Lake  County,  for  the  privilege  of  making  a  canal 
across  a  portion  of  a  Mr.  NefFs  Farm.  It  will  be  ob- 
served that  this  is  a  request  for  a  right  of  way  across 
private  property  in  so  far  as  there  could  be  private 
property  before  the  Federal  Government  had  provided 
for  the  issuance  of  land  titles  in  the  territory.  The 
court  granted  the  request  on  condition  that  "  the  canal 
be  made  on  a  straight  line  from  the  point  where  the 
water  is  taken  out  of  the  river  to  the  Bluff."  John 
Weinel  petitioned  in  1865  for  the  right  to  appropriate 
the  waters  of  Grove  Creek.  A  committee  was  appointed 
by  the  court  to  examine  the  whole  project  and  if  feasible 
to  locate  the  canal  which  was  done.  Weinel  was  then 
informed  that  his  grant  of  the  waters  was  conditioned 
upon  his  conveying  it  through  a  canal  constructed  along 
the  line  laid  out  by  the  committee  and  approved  by  the 
court 


THE  CONTROL  OF  IRRIGATION  WATER  73 

The  cases  already  presented  are  sufficient  to  indicate 
the  policy.  All  the  counties  did  not  keep  such  strict 
supervision  over  the  location  and  construction  of  dams 
and  canals.  Some  paid  no  attention  at  all  to  their 
location;  others  gave  the  system  some  attention  but 
discontinued  it  in  the  sixties  hut  Salt  Lake  County, 
through  the  county  court,  exercised  strict  control  until 
1880  and  in  some  cases  until  1882.  It  was  not,  how- 
ever, in  the  location  of  new  claims  and  canals  alone  that 
the  court  exercised  control.  In  Davis  County,  S.  Cook 
and  several  others  petitioned  for  the  right  to  construct  a 
water  ditch.  The  permission  was  granted  on  condition 
that  at  some  future  time  the  people  of  Riverdale  may 
use  the  canal  to  convey  all  the  water  they  desire  provided 
they  enlarged  it  sufficiently. 

In  1870  A.  Gardner  and  four  others  petitioned  the 
court  to  allow  them  to  take  water  through  the  new  ditch 
from  Little  Cottonwood.  The  request  was  opposed  by 
forty-three  owners  of  the  canal.  The  court  ordered  that 
the  sum  of  $200  be  expended  to  enlarge  the  canal  under 
the  direction  of  the  water-master  and  when  that  amount 
was  spent  and  the  ditch  correspondingly  enlarged  that 
the  petitioners  were  to  be  permitted  to  run  water  through 
the  canal. 

A  principle  followed  by  practically  all  the  courts  was 
that  when  a  grant  of  water  or  the  location  of  a  dam  or 
3anal  was  made  the  water  right  could  not  be  sold  or  trans- 
ferred or  the  location  of  the  dam  or  point  of  diversion 
of  the  canal  could  not  be  changed  without  the  consent 
of  the  court.  On  September  30,  1870,  thirty-one  cit- 
izens of  West  Jordan  Precinct  petitioned  the  court  for 
the  privilege  of  extending  the  Jordan  Mill  Race  fifty 


74      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

or  sixty  rods  up  the  Jordan  River  to  improve  irrigation 
facilities.  The  request  was  granted.  In  1873  thirty- 
four  owners  of  the  South  Jordan  Canal  requested  the 
court's  permission  to  change  the  point  of  diversion  of 
their  canal.  This  was  granted  after  an  investigation. 

SPRINGS 

The  county  courts  controlled  the  springs  as  well  as 
the  streams.  Even  when  the  springs  were  located  upon 
his  land  the  owner  had  to  petition  for  the  use  of  the 
water.  Davis  County  Court  in  1856  granted  John 
Weinel  exclusive  control  of  the  waters  of  Grove  Spring. 
Utah  County  Court  in  1858  granted  the  Hot  Springs  to 
M.  Green  and  others  for  irrigation.  Alvin  Nichols  of 
Box  Elder  County  received  permission  from  the  courts 
to  use  the  waters  of  the  Hot  Springs  to  irrigate  grass 
lands.  L.  W.  and  I.  G.  Hardy  petitioned  the  court  of 
Salt  Lake  County  for  the  use  of  a  spring  located  above 
their  farm  lands,  and  the  request  was  granted.  James 
G.  Flackrell  asked  for  the  use  of  a  spring  on  his  land 
and  near  his  house.  The  matter  was  referred  to  a  com- 
mittee for  investigation  to  report  to  the  court.  I.  B. 
Kent  of  the  same  county  petitioned  the  Davis  County 
court  in  1865  for  a  spring  located  east  of  his  farm.  The 
court  granted  the  use  of  the  waters  of  the  spring  pro- 
vided that  no  other  spring  or  water  course  is  injured 
by  the  withdrawing  of  the  water  from  the  spring. 

Here  was  a  recognition  of  the  fact  by  the  County 
Court  of  Davis  that  the  diversion  of  percolating  waters 
may  injure  a  spring  or  a  stream.  It  took  the  Utah 
Supreme  Court  about  thirty-five  years  to  come  to  this 
conclusion. 


THE  CONTROL  OP  IRRIGATION  WATER  75 

George  D.  Grant  was  authorized  to  clean  out  and 
develop  a  certain  spring  near  his  farm.  In  1875  L.  D. 
Young  petitioned  the  court  of  Salt  Lake  County  for  the 
use  of  the  waters  of  certain  springs  arising  on  his  land. 
The  court  ordered  "  that  the  right  prayed  for  be  and  the 
same  is  granted  to  said  petitioner  and  that  he  be  re- 
quired to  take  care  of  same  when  not  in  use."  L.  H. 
Kennard  in  1878  had  diverted  and  used  certain  springs 
on  Antelope  Creek  and  asked  the  court  to  approve  the 
diversion  and  use  of  the  waters  for  irrigation  purposes, 
which  was  done. 

SURPLUS   OE   WASTE   WATER 

Where  there  was  a  surplus  of  waste  water,  the  court 
encouraged  the  use  of  it,  but  at  the  same  time  made  it 
subject  to  grant  by  the  court  just  the  same  as  other 
waters.  Near  Salt  Lake  City  a  large  number  of  five- 
acre  fields  had  been  created  when  the  city  was  first 
settled.  Water  was  brought  to  these  at  once  and  farm 
products  produced  very  early  to  support  the  settlers. 
On  June  25,  1852,  J.  L.  Packer  and  fifty  others  peti- 
tioned the  court  for  the  privilege  of  using  the  surplus 
water  of  the  canal  built  to  water  the  five  acre  lots.  The 
petition  was  granted  by  the  court  "  when  the  water  was 
not  wanted  for  irrigation." 

In  1856,  the  Salt  Lake  County  Court  issued  the  fol- 
lowing order :  "  It  is  ordered  by  the  court  that  William 
Andrews  and  Daniel  Cahoon  have  the  privilege  of  taking 
out  the  waste  water  of  Little  Cottonwood  at  or  near  the 
State  Koad  and  have  the  control  of  the  same  for  irri- 
gating purposes."  In  the  same  year  "  it  was  ordered 
by  the  court  that  the  citizens  of  Union  have  the  right  to 


76      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  use  of  all  the  waste  waters  of  Dry  Creek  not  required 
for  the  farms  of  A.  S.  Merrill  and  John  Neff  for  irrigat- 
ing purposes."  Weber  County  Court  in  1871  granted 
the  request  of  twelve  farmers  to  use  the  surplus  water 
of  Three  Mile  Creek.  In  Davis  County  in  1873  George 
D.  Noble  asked  for  the  use  of  the  waste  water  arising 
from  the  Lower  Springs  after  they  had  supplied  the 
needs  of  the  farmers  having  a  prior  right.  The  right 
was  granted  to  use  the  water  after  it  had  left  the  land  of 
Anson  Call  and  others. 

APPLICATIONS    DENIED    OR    RESCINDED 

In  water  jurisdictions,  the  power  to  approve  grants 
has  not  always  carried  with  it  the  authority  to  deny 
them.  But  in  the  County  Courts  of  Utah  the  authority 
to  deny  applications  was  frequently  made  use  of.  It 
will  not  be  possible  to  consider  each  denial,  and  a  few 
cases  will  be  chosen  to  illustrate  how  the  authority  was 
used. 

In  1855,  twenty-four  farmers  petitioned  for  the  priv- 
ilege of  bringing  out  the  water  of  Bingham  Canyon. 
The  petition  was  protested  by  eleven  farmers  and  the 
court  said  after  a  careful  investigation  that  it  had  de- 
cided not  to  grant  the  petition  because  there  was  not 
enough  water  for  all.  The  petition  of  I.  C.  Little  and 
others  of  Davis  County  in  1861  for  the  use  of  the  water 
of  Canyon  Creek  for  irrigation  purposes  was  considered 
together  with  a  remonstrance  based  on  the  ground  that 
to  make  the  grant  requested  would  injure  the  land  al- 
ready under  cultivation.  The  court  appointed  a  com- 
mittee to  consider  the  grant  on  its  merits  and  to  investi- 
gate the  supply  of  water.  After  investigating  the  dif- 


THE  CONTROL  OF  IRRIGATION  WATER  77 

ferent  claims  for  a  month  the  committee  reported  against 
making  the  grant  and  the  petition  was  denied.  In  1867 
the  county  court  of  Davis  County  rescinded  a  water 
grant  to  Bair  because  he  had  not  complied  with  the 
terms. 

Several  citizens  of  Big  Cottonwood  appeared  before 
the  County  Court  on  March  21,  1872,  and  made  repre- 
sentations showing  that  the  right  to  use  the  waters  of 
Dry  Creek  and  Spring  Creek  granted  to  Niels  Peterson 
and  others  January  20,  1872,  interfered  with  the  rights 
previously  granted  in  that  there  was  not  enough  water 
for  all.  The  court  ordered  the  grant  to  Niels  Peterson 
and  others  revoked.  The  court  of  Box  Elder  County  in 
1872  had  granted  certain  springs  upon  lands  formerly 
owned  by  Captain  Evans  and  others.  On  the  report  of 
Jesse  W.  Fox,  in  1873,  that  he  had  surveyed  the  lands 
in  question  in  1853  for  Captain  Evans  and  that  the 
springs  were  included  with  the  land,  the  court  revoked 
its  former  order  and  awarded  the  springs  to  H.  P.  Jen- 
sen the  present  legal  owner  of  the  land.  The  request  of 
L.  P.  Johnson  for  the  use  of  the  waters  of  Dunn's  Creek 
was  summarily  denied  by  the  county  court  of  Box  Elder 
County  because  all  the  water  had  been  appropriated. 
In  1873  the  county  court  of  Davis  County  granted  the 
citizens  of  the  South  Water  District  an  emergency  grant 
to  save  their  crops  until  more  satisfactory  arrangements 
could  be  made.  In  1875  they  came  back  with  a  similar 
request  and  the  court  denied  it.  The  Salt  Lake  County 
Court  in  1876  in  response  to  a  request  by  O.  A.  Goetla 
for  water  to  be  used  near  Sandy  said :  "  The  Court  de- 
cided not  to  grant  any  more  individual  rights  for  irri- 
gating purposes  until  said  ditch  is  enlarged  as  all  the 


78      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

water  that  can  be  brought  down  to  the  farming  land  is 
now  used  for  irrigating  purposes  and  to  supply  the  in- 
habitants of  Sandy  and  the  smelters  there." 

FINANCIAL  AID  IN  THE  CONSTRUCTION  OF  DAMS  AND 
CANALS   AND  DAMAGES  PAID 

In  the  construction  cf  canals  and  dams  it  is  often  as- 
sumed and  even  asserted  that  the  cooperative  system  pro- 
vided Utah  with  its  system  of  irrigation  canals,  but  a 
careful  investigation  reveals  the  facts  that  cities,  counties 
and  territorial  treasuries  were  drawn  upon  for  support 
in  the  building  of  dams  and  canals.  In  some  instances 
taxes  were  specifically  levied  to  aid  in  the  construction 
of  canals  that  were  essential  to  the  economic  prosperity 
of  the  several  communities.  It  is  an  open  and  notorious 
fact  that  the  Mormon  Church  out  of  its  revenues  has 
financed  a  large  number  of  irrigation  projects  and 
waited  until  the  settlers  could  return  the  funds  ad- 
vanced. The  records  of  Salt  Lake  County  are  such  as 
to  make  it  almost  impossible  to  determine  how  much 
was  spent  to  aid  in  the  construction  of  its  irrigation  sys- 
tem. The  records  do  show,  however,  how  much  was 
spent  on  the  dam  in  the  Jordan  River,  a  sum  amounting 
to  $12,000  and  the  dam  was  given  outright  to  the  differ- 
ent irrigation  companies  using  it. 

In  Sept.  30,  1870,  A.  Gardner  and  four  others 
petitioned  for  the  right  to  use  the  New  Ditch  to  carry 
water  to  their  farms.  Upon  investigation  the  ditch  was 
found  too  small  and  the  county  appropriated  $200  to 
enlarge  it  when  the  petition  was  granted.  In  1872  the 
County  Court  contracted  for  the  construction  of  a  dam 
in  the  Jordan  for  the  sum  of  $4700  to  be  paid  out  of 


THE  CONTROL  OF  IRRIGATION  WATER  79 

the  county  treasury.  The  dam  was  to  be  completed  by 
June  1,  1873.  In  1873  seventy-six  farmers  petitioned 
the  county  for  aid  in  the  completion  of  the  West  Jordan 
Canal.  The  court  deferred  action  until  it  could  ex- 
amine the  country  through  which  the  canal  runs.  The 
payment  by  the  court  of  $103.25  for  repairs  and  special 
water-master  services  and  $960.83  in  1873  for  excava- 
tion shows  the  attitude  of  the  court. 

The  county  of  Salt  Lake  also  paid  for  the  salary  of 
the  care-taker  of  the  dam  at  $40  (forty  dollars)  a  month 
for  the  year.  These  are  only  minor  amounts,  but  they 
show  the  use  of  taxation  to  build  canals.  Just  when  the 
appropriations  were  made  to  the  South  Jordan  Canal 
Company  and  to  the  Utah  and  Salt  Lake  Canal  Com- 
pany it  is  difficult  to  determine,  but  in  a  settlement  that 
the  county  insisted  upon  in  1883  it  developed  that  the 
county  court  had  expended  from  the  funds  of  the  county 
treasury  $22,622.63  in  the  construction  of  the  South 
Jordan  Canal  and  $33,949.94  on  the  construction  of 
the  Utah  and  Salt  Lake  Canal.  In  the  first  request  for 
a  settlement  made  by  the  court  upon  the  directors  of 
the  South  Jordan  Canal  Company  in  1883,  three  years 
after  the  court  had  lost  jurisdiction  over  the  irrigation 
waters  of  the  county,  the  directors  of  the  South  Jordan 
Company  decided  to  ignore  the  request  because  they 
contended  that  the  water  company  did  not  owe  the 
county  anything.  Finally  in  1884  upon  the  court 
strongly  insisting  that  by  the  act  of  1880  the  canals  be- 
came private  property  and  that  the  money  advanced  by 
the  county  was  an  obligation  by  the  canal  companies  to 
the  county.  A  settlement  of  $5000,  disregarding  in- 
terest, was  made  upon  the  $22,622,63*  In  addition  to 


80      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

this  it  was  agreed  that  the  county  should  hold  a  small 
number  of  shares  of  stock.  A  like  settlement  was  made 
for  the  $33,949.94  spent  upon  Utah  and  Salt  Lake 
Canal. 

The  amounts  given  above  do  not  include  the  cost  of 
engineering  services  which  were  rendered  free  to  the 
companies  and  at  the  expense  of  the  county.  In  addi- 
tion to  the  foregoing  accounts  in  1882  the  county  court 
gave  to  the  Utah  and  Salt  Lake  Canal  Company,  the 
South  Jordan  Canal  Company,  Utah  and  Salt  Lake 
City  Canal,  East  Jordan  Canal  Company,  and  the  North 
Jordan  Canal  Company  each,  one-sixth  interest  in  the 
dam  in  the  Jordan  River  together  with  the  right  of 
way  that  each  canal  occupied  which  rested  in  the  county. 
The  dam  alone  cost  $12,000. 

In  Weber  County  in  1852  the  county  loaned  to  the 
city  for  the  construction  of  the  Weber  Canal  two-thirds 
(%)  of  the  county  revenue  for  that  year.  In  1853  the 
Weber  Canal  Company  came  back  to  the  county  through 
Ogden  City  for  another  grant.  The  county  court  of- 
fered to  advance  the  money  as  a  loan  or  to  accept  stock 
in  the  canal  as  payment  but  this  offer  was  refused.  Fi- 
nally, no  other  funds  being  available,  and  the  Court  re- 
fusing to  consider  any  other  terms,  the  funds  were 
advanced  and  stock  in  the  canal  given  in  payment.  In 
this  agreement  the  county  court  agreed  to  appropriate 
funds  to  complete  the  canal  on  condition  that  the  con- 
trol of  the  canal  rest  in  the  hands  of  the  city  council 
and  the  county  court  and  that  farmers  using  the  waters 
of  the  canal  for  irrigation  pay  an  annual  fee  per  acre 
for  its  upkeep.  Persons  delinquent  in  their  taxes  in 
1852  were  permitted  to  work  them  out  on  the  canal. 


THE  CONTROL  OP  IRRIGATION  WATER  81 

Prior  to  1854  the  Weber  Canal  was  only  partially  com- 
pleted and  the  City  Council  and  the  county  court  de- 
termined upon  its  completion.  The  county  court  ap- 
pointed a  committee  to  locate  it  and  March  18,  1854, 
the  committee  reported  that  it  had  located  the  canal. 
The  committee  was  then  instructed  to  receive  bids  for 
its  construction  and  let  the  contract  to  the  lowest  bidder 
on  condition  that  the  work  must  be  done  by  July  1, 

1854.  September  7,  1854,  the  city  council  and  county 
court   passed   a   joint   resolution    "  providing  that   all 
county  and  city  revenue  for  1854  be  paid  out  on  said 
canal  except  contingent  expenses."     Up  to   May  16, 

1855,  the  city   and   county  had   advanced   $2,970.42 
toward  the  construction  of  the  Weber  Canal. 

The  counties  outside  of  Salt  Lake  and  Weber  did  very 
little,  if  anything,  from  the  public  revenues  toward  the 
construction  of  canals  or  dams.  The  county  court  of 
Box  Elder  on  December  4,  1876,  appropriated  upon  a 
verbal  petition  of  several  farmers  $1,000  to  assist  in  de- 
fraying the  expense  of  making  a  canal  in  Box  Elder 
Valley  "  for  general  irrigation  purposes." 

Occasionally  the  counties  paid  the  damage  sustained 
by  farmers  through  breaks  in  dams  or  canals  or  from 
flooding.  But  generally  it  was  embodied  in  the  grants, 
when  made,  that  they  should  pay  for  damages  suffered 
through  the  irrigation  system.  January  19,  1872,  a 
farmer  of  Salt  Lake  County  appeared  before  the  court 
and  showed  that  he  had  suffered  damages  to  his  prop- 
erty occasioned  by  the  excavation  of  a  ditch  made  to  turn 
the  waters  into  the  Big  Cottonwood  Canal.  The  court 
settled  with  him  for  $296.50.  In  a  similar  case  in 
1872,  $66  was  paid  to  L.  Bringhurst  for  damage  to  a 


82      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

five  acre  lot.  The  few  cases  where  damages  were  paid 
go  to  show  that  the  county  did  assume  the  full  responsi- 
bility of  the  waters  within  its  boundaries. 

TRANSFER   OF    WATER   RIGHTS 

June  7,  1875,  Silas  Eichards  petitioned  the  court 
for  the  right  to  transfer  his  water  right.  The  court 
ordered  "  That  the  said  Silas  Richards  shall  have  the 
privilege  and  right  to  take  his  portion  of  water  in  the 
ditch  known  as  the  Surplus  Ditch  to  his  farm  south  of 
Union  Fort  as  he  does  not  want  to  use  the  same  on  the 
land  where  he  formerly  used  it." 

David  Brinton  and  two  others  had  purchased  the 
waters  of  Little  Willow  Creek  from  the  former  users 
but  the  county  court  did  not  concede  the  right  for  an 
irrigator  to  transfer  his  water  right  to  another  person  or 
to  another  piece  of  land  without  its  consent.  Undoubt- 
edly many  such  transfers  took  place.  In  fact,  it  is 
known  they  did,  yet  there  are  sufficient  instances  on 
record  to  show  the  attitude  of  the  courts  when  the  ques- 
tion came  before  them.  In  Davis  County,  December 
23,  1861,  John  Gailey  petitioned  the  court  to  permit 
him  to  use  the  water  belonging  to  a  poor  piece  of  land 
on  a  good  piece  of  land,  owned  by  him,  which  was  not 
entitled  to  water.  The  court  granted  the  petition.  In 
granting  to  A.  Gardner  and  others  the  use  of  a  canal, 
when  enlarged  sufficiently  to  carry  water,  the  court  in 
Salt  Lake  County  in  1871  said  "  These  men  (giving  the 
names)  shall  have  the  right  to  take  their  portion  of  the 
water  out  of  said  ditch  where  it  will  be  to  their  greatest 
interest  whether  it  be  east  or  west  of  the  State  Road." 
On  March  23,  1875,  several  farmers  of  Sandy  and  Salt 


THE  CONTROL  OF  IRRIGATION  WATER  83 

Lake  County  petitioned  the  court  "to  grant  them  the 
right  to  take  and  use  their  right  of  water  which  they 
have  secured  in  the  New  Ditch  leading  from  the  narrows 
of  Little  Cottonwood  west  hy  Sandy  on  the  east  of  the 
State  Road  " ;  the  court  ordered  that  the  petitioners 
"  have  the  right  to  use  their  portion  of  appropriations." 
Many  writers  maintain  that  the  best  system  of  water 
usage  is  where  the  water  right  is  attached  to  the  land  so 
that  it  is  impossible  for  any  one  to  gain  a  monopoly  of 
the  water  supply.  If,  however,  under  any  circumstances 
transfers  are  to  be  allowed  whether  from  individual  to 
individual  or  from  one  piece  of  land  to  another  they 
should  require  the  approval  of  a  competent  court  or 
other  tribunal  legally  having  charge  of  water  right 
transfers. 

THE  ADJUSTMENT  OF  WATER  BIGHTS 

The  two  most  important  functions  invested  in  the 
county  courts  were  the  granting  and  the  adjudicating  of 
water  rights.  Most  of  the  water  of  the  territory  had 
been  appropriated  before  these  courts  had  been  estab- 
lished, and  where  the  appropriators  made  a  beneficial 
and  economic  use  of  the  water  the  old  rights  were  recog- 
nized, but  where  the  use  was  not  a  beneficial  or  economic 
one  the  county  courts  did  not  hesitate  to  reduce  the 
amount.  The  common  way  of  dividing  the  waters  of  a 
stream  was  in  fractional  parts  of  the  flow  rather  than  in 
second  feet.  The  methods  of  settling  the  difficulties  can 
be  best  illustrated  by  a  consideration  of  a  few  of  the 
cases  brought  under  the  jurisdiction  of  the  courts.  It 
must  be  borne  in  mind  that  the  primary  consideration 
by  these  courts  in  making  water  grants  and  in  adjudi- 


84:      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

eating  water  claims  was  the  welfare  of  the  community 
rather  than  the  interest  of  the  individual  unless  these 
interests  were  coincident. 

In  1855  the  county  court  of  Davis  ordered  "that 
the  bishops  of  the  several  wards  of  Davis  County  shall 
have  the  right  and  power  to  control  the  water  powers 
of  the  canyons  and  etc.,  so  far  as  it  shall  be  deemed  for 
the  general  welfare  of  the  public." 

In  the  year  1856,  several  complaints  reached  the 
court  of  Salt  Lake  County  in  regard  to  difficulties  aris- 
ing over  the  distribution  of  water ;  the  selectmen  of  the 
court  were  appointed  a  permanent  standing  committee 
to  make  adjustments  as  far  as  possible. 

There  was  trouble  over  the  distribution  of  the  waters 
of  Little  Cottonwood  Creek  between  the  different  canals 
and  the  towns  so  the  court  created  a  special  committee 
of  the  selectmen  to  investigate  the  whole  matter  to 
determine  upon  a  plan  of  distribution,  to  consider  what 
lands  were  entitled  to  water  and  to  recommend  the 
omission  of  lands  from  irrigation  if  it  was  desirable. 
The  committee  was  appointed  September  2,  1856,  and 
at  once  went  to  work.  At  the  next  regular  session  of 
the  court  it  was  prepared  to  report  that  in  its  judgment 
it  would  not  be  good  policy  to  exempt  any  of  said  lands 
from  the  use  of  waters  but  rather  to  divide  the  water 
among  the  farming  lands  as  follows :  "  The  land  east 
of  the  County  Road  known  as  Little  Cottonwood  one- 
ninth,  Cahoon,  Ericksen,  and  Maxwell  ditch,  five- 
eighteenths;  the  lands  on  the  north  side  of  Little  Cot- 
tonwood, two-ninths;  land  belonging  to  Union  Ward 
and  next  to  the  County  Road,  five-eighteenths,  and  lands 


THE  CONTROL  OF  IRRIGATION  WATER  85 

watered  by  the  Hammond  Ditch  one-ninth  of  the  flow  of 
the  Little  Cotton  wood  stream." 

The  report  was  approved  by  the  court  and  accepted 
by  the  water  users. 

In  September,  1859,  a  petition  was  presented  by 
Andrew  Gaboon  and  other  inhabitants  of  South  Cotton- 
wood  representing  to  the  court  that  their  water  priv- 
ileges were  being  infringed  upon  by  the  inhabitants  of 
Union  Fort  settlement.  The  matter  was  referred  to  the 
selectmen  for  an  adjustment. 

A.  S.  Merrill  sold  in  1862  a  portion  of  the  flow  of  Dry 
Creek  to  the  inhabitants  of  South  Willow  Creek.  The 
court  ordered  the  transfer  approved  and  upon  the  re- 
quest of  all  parties  interested  divided  the  waters  of  Dry 
Creek  one-half  of  the  flow  to  John  Neff  and  one-half  to 
the  inhabitants  of  South  Willow  Creek  until  the  first 
day  of  August  in  each  year,  and  thereafter  the  inhabit- 
ants of  South  Willow  Creek  were  to  have  control  of 
two-thirds  of  the  stream  and  John  Neff  of  the  other 
third,  the  water  to  be  divided  at  the  most  suitable 
place  at  the  base  of  the  mountain. 

In  Davis  County  the  farmers  in  1857  petitioned  the 
court  for  an  investigation  of  the  rights  of  the  users  of 
the  South  Sandy  Fork  Creek.  The  court  appointed  a 
committee  to  investigate  the  rights  of  the  farmers  on  the 
stream  and  to  report  to  the  court  what  they  regarded  as 
an  equitable  distribution  of  the  waters.  The  report 
was  to  be  made  as  early  as  possible  so  as  to  go  into 
effect  that  season.  In  this  case  the  committee  was  ap- 
pointed from  citizens  outside  of  the  court.  The  court 
followed  a  similar  procedure  in  1860  in  regard  to*  the 


86      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

waters  of  Stoker's  Ward  with  like  satisfactory  results. 

An  interesting  case  arose  in  Box  Elder  County  in 
1859.  Harmony  Pierson  had  purchased  a  spring  for 
his  exclusive  use.  Other  users  of  the  waters  flowing 
from  the  spring  protested  Pierson's  exclusive  use.  The 
decision  of  the  court  is  set  out  here  in  full.  "  The  court 
was  called  upon  to  establish  the  right  of  water  for  irri- 
gating purposes,  to  Harmony  Pierson's  spring  in  Dis- 
trict 1  by  Water-master  James  Whitaker.  The  court 
held  that  Pierson  had  not  the  exclusive  right  to  said 
spring  water,  although  he  might  have  bought  it  with 
that  understanding  but  it  belonged  to  the  public  for  irri- 
gating purposes  as  much  as  any  other  water  in  the  dis- 
trict and  should  be  controlled  by  the  water-master  for  the 
citizens  who  are  interested  and  who  expect  to  get  water 
from  said  spring,  paying  an  equal  proportion  of  the  first 
cost  with  Pierson  for  said  spring  water  privilege  and 
thereafter  to  hold  an  equal  right  with  him  to  said  water 
for  irrigating  purposes  in  respect  to  the  respective  quan- 
tity and  quality  of  land  to  be  irrigated  by  said  spring." 

This  decision  is  a  particularly  valuable  one,  setting 
forth  as  it  does  the  all-important  doctrine  that  the 
waters  of  the  territory  belonged  to  the  public  and  not 
to  the  users  and  that  the  distribution  should  be  according 
to  economic  needs.  Although  the  language  is  not  very 
clear,  it  is  doubtful  whether  any  decision  pertaining  to 
irrigation  and  involving  irrigation  law  has  ever  been 
based  on  sounder  principles. 

In  1864  differences  arose  between  Union  and  South 
Cottonwood  as  to  the  division  of  Little  Cottonwood ;  the 
court  appointed  water-masters  to  divide  the  water  ac- 
cording to  its  former  decree.  Finally  for  each  canal 


THE  CONTROL  OF  IRRIGATION  WATER  87 

drawing  water  from  Little  Cottonwood  a  water-master 
was  appointed  and  all  of  them  formed  a  committee  to 
see  that  the  waters  of  Little  Cottonwood  were  properly 
divided.  The  citizens  of  North  Canyon,  Davis  County, 
in  1864  petitioned  the  court  for  a  committee  to  investi- 
gate the  proper  course  and  use  of  Barton  Creek.  They 
represented  that  the  creek  had  been  diverted  from  its 
proper  course  and  use.  The  committee  was  appointed 
but  the  report  is  not  recorded.  The  same  court  in  1867 
ordered  an  investigation  of  a  complaint  by  John  Weinel 
that  certain  parties  were  interfering  with  his  water 
claims. 

These  courts,  even  without  complaint,  exercised  the 
right  to  investigate  the  misuse  or  abuse  of  the  use  of 
waters  if  they  saw  fit  because  the  waters  were  held  to  be 
public  property  as  expressed  in  Pierson's  case.  The 
citizens  of  Spanish  Fork,  Utah  County,  in  1865  re- 
monstrated to  the  county  court  against  certain  grants 
that  it  had  made  claiming  that  by  such  action  they  were 
deprived  of  sufficient  water  to  produce  their  crops.  The 
court  appointed  a  committee  to  look  into  the  kind  of 
land,  its  lay  and  the  amount  of  water  it  required  for  an 
economical  use.  So  that  it  could  make  a  final  and 
equitable  decision,  which  it  attempted  to  do  upon  the 
facts  furnished  by  the  committee.  The  county  court 
of  Salt  Lake  County  was  petitioned  in  1867  by  the 
farmers  east  of  the  Jordan  Mills,  in  the  bench,  for  the 
surplus  waters  of  Little  Cottonwood.  The  court  made 
the  following  decree :  "  That  the  surplus  water  of  Little 
Cottonwood  asked  for  in  said  petition  be  divided  between 
the  ditches  below  said  stream  so  that  there  shall  be  an 
equal  distribution  according  to  the  amount  of  land  to 


88      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

be  irrigated.  The  county  court  to  make  said  division  if 
any  controversy  should  arise  which  could  not  be  settled 
by  the  water-masters  of  the  several  ditches." 

A  dispute  arose  between  D.  S.  Stone  and  I.  !N". 
Spaulding  of  Weber  County  as  to  who  was  the  rightful 
claimant  of  Stone  Spring.  The  court  appointed  a  com- 
mittee to  investigate  the  matter.  The  committee  re- 
ported that  D.  S.  Stone  was  the  rightful  claimant  of 
the  waters  of  Stone  Spring  and  also  East  Spring  near 
by  for  irrigating  purposes  and,  acting  upon  the  report 
of  the  committee,  the  court  awarded  him  the  spring. 
Disputes  arose  as  to  the  rightful  claimants  of  Canfield 
Creek;  the  Court  of  Weber  County,  early  in  the  year 
1874,  appointed  a  committee  to  make  a  thorough  in- 
vestigation and  report  an  equitable  distribution.  It  was 
determined  that  the  streams  would  water  116  acres  and 
that  it  should  be  divided  among  sixteen  claimants,  in 
quantities  of  water  varying  from  enough  to  irrigate 
one-half  an  acre  to  twenty  acres.  In  making  the  awards 
the  committee  granted  meadow  lands  the  same  quanti- 
ties as  farming  lands,  but  in  case  an  equal  amount  was  \ 
desired  the  water  from  the  meadow  lands  must  be  used 
early  so  that  the  best  available  use  could  be  made  of  the 
water  for  the  production  of  other  crops.  This  was  done 
because  the  hay  crop  is  usually  harvested  early. 

It  was  also  recommended  that  "  the  water  shall  not 
be  transferred  from  the  lands  having  title  to  it  under 
this  apportionment  to  other  lands  where  such  transfer 
works  an  injury  to  any  of  those  parties  to  whom  the 
water  has  been  awarded."  In  the  complaint  when  first 
brought  before  the  court  objections  had  been  raised  to 
W.  R.  R.  Stowell  and  George  Poulter  using  the  waters 


THE  CONTROL  OF  IRRIGATION  WATER  89 

of  Canfield  Creek  on  the  grounds  that  their  lands  were 
taken  up  from  two  to  three  years  later  than  the  lands  of 
other  claimants  and  consequently  they  did  not  possess 
prior  rights.  The  committee  ruled  out  this  contention 
on  the  grounds  "  that  the  parties  had  paid  taxes  for 
the  use  of  the  water  to  the  city  council  of  Ogden  in 
common  with  other  claimants  whose  taxes  had  been  ap- 
propriated by  the  City  Council  in  the  construction  and 
enlargement  of  the  Weber  Canal  and  that  in  conse- 
quence of  this  the  title  of  parties  owning  lands  under 
the  Weber  Canal  to  the  waters  of  the  stream  had  been 
extinguished  and  their  rights  and  claims  transferred  to 
those  parties  having  lands  east  of  said  Weber  Canal  who 
had  paid  taxes  to  assist  in  furnishing  them  water  from 
the  Weber  River.  Moreover,  the  waters  of  Canfield 
Creek  had  been  used  upon  these  lands  for  twenty-eight 
years,  and  while  repeated  assertions  had  been  made  that 
Stowell  and  Poulter  were  not  entitled  to  the  use  of 
water,  but  that  during  this  long  period  no  steps  had  been 
taken  to  contest  their  rights.  In  the  meantime  large 
sums  had  been  expended  for  permanent  improvements 
on  the  farms,  especially  by  Stowell.  Until  at  the  pres- 
ent time,  he  has  valuable  corrals,  orchards,  fences,  etc., 
on  his  farm.  To  deprive  these  farmers  of  water  at  this 
late  date  would  be  to  destroy  the  labor  of  twenty-eight 
years."  The  committee  therefore  included  in  the 
awards  the  use  of  water  to  Stowell  and  Poulter.  The 
court  approved  the  awards  of  the  committee.  The  same 
court  in  1879  appointed  a  standing  committee  "  to  see 
that  the  waters  flowing  within  the  limits  of  Weber 
County  are  properly  distributed  to  the  parties  entitled 
thereto  according  to  their  respective  rights." 


90      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  distribution  of  the  waters  of  Little  Muddy  River 
was  taken  up  by  the  court  of  Cache  County,  July  8, 1878, 
and  the  following  decree  made.  "  Paradise,  one-third 
of  the  South  Fork  to  be  divided  at  or  near  Jackson  and 
Company  Saw  Mill  and  one-half  of  the  East  Fork  to  be 
divided  at  or  near  the  head  of  the  new  ditch,  also  when 
Paradise  people  bring  one-third  of  the  South  Fork  into 
Hyrum  Ditch  then  they  are  to  take  as  much  water  from 
the  East  Fork  in  addition  to  the  one-half  as  they  bring 
in,  Hyrum  one-half  of  the  East  Fork  and  Wellsville  two- 
thirds  of  the  South  Fork,  said  apportionment  made 
agreeable  to  a  division  made  by  the  inhabitants  of  Wells- 
ville, Hyrum,  and  Paradise." 

In  a  dispute  between  the  users  of  water  of  Three  Mile 
Creek,  Box  Elder  County,  the  court  decided  that  be- 
tween July  15,  and  September  30  that  the  waters  of 
Three  Mile  Creek  be  divided  equally  between  districts 
three  and  four  and  after  September  30,  when  the  stream 
became  very  small,  district  three,  where  the  village  was 
located,  should  have  two-thirds  of  the  flow  of  the  stream. 

C.  J.  Lambert  and  Charles  Wilkes  petitioned  the 
county  court  of  Salt  Lake  in  1876  for  a  division  of  the 
waters  of  Canyon  Creek  near  the  Wasatch  Woollen 
Mills.  The  court  appointed  Selectman  E.  M.  Weiler 
to  examine  the  claims  and  water  admission  of  the  same 
and  report  to  the  court  for  approval.  The  same  matter 
coming  up  in  1878  the  court  appointed  an  official  divider 
of  waters  to  see  that  each  person  secure  his  just  and 
rightful  claims.  The  matter  was  not  again  brought 
into  court.  Disputes  arising  between  the  users  of  the 
waters  flowing  through  the  Bennion  and  the  Parker 
ditches  the  court  of  Salt  Lake  County  appointed  a  com- 


THE  CONTROL  OF  IRRIGATION  WATER  91 

mittee  in  187"  9  "  to  divide  and  apportion  the  waters  of 
these  ditches. " 

If  the  reader  has  followed  the  citation  of  these  repre- 
sentative cases,  to  which  hundreds  more  might  easily  be 
added,  he  will  doubtless  be  struck  with  the  simplicity 
and  directness  of  the  methods  of  settling  water  disputes 
that  obtained  for  nearly  thirty  years  in  the  territory  of 
Utah.  The  method  was  inexpensive  and  prompt. 
Seldom  did  a  case  remain  six  months  before  it  was 
brought  before  the  court  for  final  settlement.  It  did  not 
bankrupt  farmers  nor  require  the  services  of  highly  paid 
lawyers  to  get  their  water  difficulties  passed  upon  by  a 
competent  court.  The  principles  applied  were  those  of 
community  welfare.  At  the  same  time  individual  rights 
were  properly  guarded.  It  was  not  possible  for  indi- 
viduals or  communities  to  appropriate  water  not  needed 
in  the  hope  that  at  some  future  date  such  waters  may 
be  useful,  thereby  retarding  the  development  of  other 
individuals  and  communities.  Under  this  system  of 
control  and  regulation  very  few  of  the  disputes  found 
their  way  into  the  district  or  the  Supreme  Court,  al- 
though the  law  distinctly  provided  for  the  right  of 
appeal. 

Judging  these  courts  by  what  they  did,  it  was  dis- 
tinctly a  retrograde  step  when  this  power  was  taken  away 
from  them  by  the  Act  of  1880. 


CHAPTER  VI 

CITY  CONTROL  OF   WATER 

Some  matters  could  be  left  for  adjustment  until  a 
civil  government  was  duly  established,  but  the  control  of 
irrigating  water,  a  most  fruitful  source  of  neighborhood 
ill-feeling  and  quarrels,  could  not  wait  for  civil  control, 
because  crops  must  be  grown  and  they  would  not  thrive 
in  this  arid  region  without  irrigation.  Community  irri- 
gation, the  very  essence  of  the  Mormon  plan,  had  an 
institutional  as  well  as  a  physical  foundation. 

DISTRIBUTION  OF  WATER 

In  the  Mormon  system  the  bishop  is  the  local  or  com- 
munity head  or  leader.  He  was  supposed  in  the  early 
days  to  look  out  for  the  economic  and  the  spiritual  wel- 
fare of  his  charge.  No  one  thing  contributed  more  to 
the  material  welfare  of  his  communuity  than  an  orderly 
and  economic  use  of  the  irrigation  water.  So  in  the 
very  beginning  the  control  and  the  distribution  of  the 
irrigation  water  came  under  his  jurisdiction.  As  has 
been  pointed  out,  the  canals  were  community  affairs. 
In  most  cases,  very  poor  accounts  were  kept  of  the 
contribution  made  or  work  done  by  each  farmer.  The 
fundamental  idea  was  the  economic  need  of  water  by 
the  farmer  to  produce  crops  to  support  his  family. 
This  was  the  principle  followed  in  the  distribution  of 

92 


CITY  CONTROL  OP  WATER  93 

water  by  the  bishop  rather  than  the  proportionate  inter- 
est that  the  farmer  may  have  acquired  in  the  canal,  for 
what  did  it  avail  the  small  community  if  it  denied  a 
farmer  water,  if  it  was  available,  and  then  had  to  pro- 
vide for  his  family  until  the  ne^xt  harvest  ? 

New  settlers  were  taken  into  the  system  and  provided 
with  water  before  they  had  done  a  thing  upon  the  irriga- 
tion system,  with  the  mere  understanding  that  if  a 
shortage  of  water  occurred  they  would  enlarge  the  canal 
so  it  would  carry  more.  The  bishop  or  a  community 
committee  of  which  he  was  usually  a  member,  was  the 
controlling  authority  in  the  distribution  of  water,  in  the 
upkeep  and  enlargement  of  the  canals  and  in  the  con- 
struction of  new  canals  until  such  time  as  the  civil  au- 
thority was  ready  and  willing  to  take  over  the  manage- 
ment and  control  of  the  system  in  different  cities  and 
counties.  In  Salt  Lake  this  came  about  in  1851,  four 
years  after  the  settlement  of  the  city.  Other  cities  and 
towns  followed  shortly  afterwards  but  many  of  them 
continued  under  the  old  system  for  two  or  three  decades. 
Even  in  so  short  a  time  as  four  years  the  authority  of  the 
bishops  over  the  water  had  been  so  firmly  established 
that  when  the  city  council  was  considering  taking  it 
over,  according  to  its  charter,  objections  were  raised  and 
in  the  discussion  Alderman  Felt  expressed  himself  as 
"  doubtful  as  to  the  jurisdiction  of  the  board  (City 
Council),  over  the  waters  of  the  city  as  an  infringement 
upon  the  legislative  powers  of  the  bishops  who  had  the 
prior  right  of  control,  before  the  city  organization." 
The  City  Council  held  that  the  bishops  had  surrendered 
their  rights  and  that  it  now  rested  upon  the  council. 

For  the  first  twenty  years  after  the  settlement  of  the 


94      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

territory  practically  all  the  towns  were  given  control 
when  their  charters  were  granted  of  irrigation  waters 
within  their  limits.  And  as  the  city  limits  in  most  cases 
included  the  adjacent  farm  lands  that  meant  all  waters 
used  hy  the  inhabitants  of  the  communities  for  garden 
and  crop  production.  So  nearly  universal  were  these 
grants  of  authority  that  there  were  only  four  or  five  ex- 
ceptions. As  there  were  only  a  few  towns  and  cities 
that  exercised  this  authority  to  an  extent  worthy  of  con- 
sideration, only  the  most  important  will  be  considered. 
These  cities  in  the  order  of  their  incorporation  are,  Salt 
Lake  City,  Provo,  Ogden,  American  Fork,  Logan  and 
others.  The  provisions  granting  the  authority  were  as 
follows :  The  Salt  Lake  City  charter  Sec.  55  in  defining 
the  powers  of  the  city  council  reads:  "  To  establish, 
make  and  regulate  public  pumps,  wells,  cisterns,  hy- 
drants and  reservoirs :  to  distribute  control  and  so  regu- 
late the  waters  flowing  into  the  city  throughout  such 
channels  as  may  be  most  advantageous  and  to  prevent  the 
unnecessary  waste  of  water."  The  provisions  in  the 
Provo  and  Ogden  charters  defining  the  powers  of  the 
councils  were  as  follows :  "  And  for  furnishing  the  city 
with  water  for  irrigating  and  other  purposes  and  to 
regulate  and  control  the  same;  and  furthermore,  so  far 
as  may  be  necessary  to  control  the  water  courses  leading 
thereto  in  the  immediate  vicinity  thereof." 

The  charter  of  American  Fork  granted  the  city  coun- 
cil authority  "  to  provide  the  city  with  water ;  to  con- 
trol the  water  courses  and  mill  sites  in  said  city,  and  the 
water  courses  leading  thereto  in  the  immediate  vicinity 
thereof." 

In  section  17  of  the  charter  of  Logan  City  it  provides 


CITY  CONTROL  OF  WATER  95 

for  the  control  of  schools  and  the  levying  of  taxes  for 
the  support  of  the  same  and  continuing  it  says  "  and 
for  furnishing  the  city  for  water  for  irrigating  and  other 
purposes  and  to  regulate  and  control  the  same ;  and  fur- 
thermore so  far  as  may  be  necessary  to  control  the  water 
courses  leading  thereto." 

It  can  be  readily  seen  that  these  provisions  granted 
extensive  powers  to  the  cities  over  irrigating  waters  and 
also  over  the  streams  flowing  in  their  natural  channels 
through  the  cities.  The  American  Fork  charter  ex- 
pressly granted  power  over  mill  sites.  This  provision 
was  not  inserted  in  the  other  charters  but  it  was  exer- 
cised under  the  general  grants.  The  Logan  grant  of 
power  was  the  only  one  to  embody  authority  to  levy 
taxes  to  provide  irrigation  water.  Other  cities  assumed 
the  authority  and  did  levy  assessments  against  the  land 
irrigated  for  the  construction,  maintenance  and  upkeep 
of  their  canals.  The  provision  in  the  Logan  charter 
was  interpreted  to  mean  authority  to  assess  all  the  prop- 
erty in  the  city  for  the  maintenance  and  support  of  the 
canal  systems.  As  we  shall  see  later,  taxes  were  levied 
for  over  twenty  years  for  the  upkeep  of  the  canals 
flowing  through  Logan  City. 

The  authority  of  the  several  cities  was  exercised 
through  ordinances  passed  by  the  councils,  and  also 
council  actions  involving  questions  needing  special  at- 
tention at  the  time  and  not  covered  by  a  general  or- 
dinance. 

The  season  when  water  could  be  used  for  irrigation, 
under  ordinary  circumstances,  was  from  April  1st  to 
November  1st ;  and  these  dates  were  generally  fixed  by 
the  cities.  As  a  general  rule,  water  was  not  needed  so 


96      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

early  or  late  for  cereals  but  it  was  frequently  used  upon 
the  meadow  and  pasture  lands. 

From  the  authority  granted  to  the  cities,  they  not  only 
controlled  the  water  within  their  limits  to  the  fullest 
extent  but  in  some  cases  where  the  streams  did  not 
flow  within  the  city  limits  the  city  authorities  exercised 
control  over  them  so  that  they  could  be  used  only  after 
permission  had  been  sought  and  obtained  in  the  form  of 
a  grant  from  the  council.  As  illustrations  of  the  au- 
thority exercised  in  making  grants  only  a  few  cases  can 
be  cited.  In  general  the  grants  made  by  the  cities 
were  for  power  purposes.  In  most  cases  they  were 
for  saw  mills,  flouring  mills,  etc.,  to  be  located  upon 
the  natural  streams  or  the  canals  flowing  through  the 
limits  of  the  cities.  These,  however,  were  not  the  only 
grants  made.  In  Ogden,  in  1851,  the  stream  flowing  out 
of  Cold  Water  Canyon  and  not  entering  the  city  proper 
was  granted  to  a  man  by  the  name  of  Montgomery. 
Similar  grants  were  made  to  different  individuals  at  the 
same  session  of  the  council.  In  1855  William  Van  Noy 
petitioned  Salt  Lake  City  Council  for  the  use  of  water 
to  turn  a  wheel.  He  maintained  that  he  had  an  agree- 
ment with  the  bishop  that  he  should  be  granted  such 
use.  The  petition  was  denied  because  there  were  prior 
petitioners.  Lying  to  the  north  of  Salt  Lake  City  were 
several  warm  springs.  They  are  mineral  in  their  nature 
and  from  the  earliest  settlement  of  the  territory  various 
ambitious  plans  have  been  proposed  to  make  that  section 
a  great  health  resort.  The  springs  at  an  earlier  date 
had  been  granted  to  Nelson  Whipple  but  for  one  reason 
or  another  he  had  surrendered  his  right  and  the  council 
in  1855  granted  them  to  O.  PL  Raleigh.  The  council 


CITY  CONTROL  OF  WATER  97 

had  had  occasion  to  regrant  these  privileges  several  times. 

City  Creek  was  the  first  stream  diverted  by  the  Utah 
pioneers.  Obviously  in  1860  there  was  surplus  water 
for,  on  petition,  the  council  granted  the  use  of  the  sur- 
plus to  Joseph  Corbett. 

Logan  City  made  several  grants  of  water  for  power 
purposes,  principally  for  flour  mills  and  saw  mills  and 
sundry  other  small  shops.  In  1873  a  committee  was 
appointed  to  consider  the  rights  of  the  several  power 
companies  using  water,  from  Logan  River.  The  com- 
mittee made  a  report  the  same  year  which  was  adopted 
by  the  city  council.  The  resolution  really  carried  a 
grant  of  water  power  to  the  following  users: 

FIBM  BUSINESS  CUBIC  FT.  PER  MINUTE 

T.  E.  Ricks Grist  Mill  1022 

Hyde  &  Preston    Carding  Mill 225 

Mickelsen  &  Peterson   642 

Charles  Olsen    Turning  Shop 208 

Peter  Affleck   Foundry  &  Machine  Shop  . .   638 

Robert  Croft   Foundry  &  Machine  Shop  . .  1099 

Robert  Croft  .  .   Foundry  &  Machine  Shop  . .  2308 

i  1200 

Card    &    Son    Saw  Mill    <  1204 

P.  U.  Peterson Planing  Mill 1099 

Ogden  River  rises  several  miles  east  of  Ogden  City 
in  the  Wasatch  Range  and  flows  through  the  city.  In 
1870  the  Ogden  Northwest  Irrigating  Company  desired 
to  divert  part  of  this  stream  from  its  natural  channel. 
But  so  complete  was  the  control  of  the  city  council  over 
the  streams  that  the  canal  company  could  not  divert  the 
water  even  though  the  point  of  diversion  was  not  within 
the  city  limits  without  permission  of  the  council.  Ac- 
cordingly the  city  council  by  resolution  authorized  the 
company  to  divert  one-fourth  of  the  Ogden  River. 


98      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

In  the  case  of  a  desire  to  enlarge  canals  already  con- 
structed and  conveying  water  beyond  the  boundaries  of 
the  city  and  for  the  purpose  of  increasing  the  supply 
for  lands  beyond  the  jurisdiction  of  the  city,  the  city 
council  held  that  the  canal  could  not  be  increased  with 
its  consent.  In  1878  Alma  Harris  and  twenty-one 
others,  all  residents  of  Benson,  petitioned  the  Logan 
City  Council  for  permission  to  enlarge  a  canal  in  the 
lower  part  of  the  city  at  their  own  cost.  The  purpose 
of  the  contemplated  enlargement  was  to  supply  water 
for  Lower  Benson.  A  few  years  later  when  Upper 
Benson  made  a  similar  request  it  was  denied  for  several 
years  until  under  pressure  of  a  threatened  suit  at  law 
the  petition  was  granted  by  the  council  and  the  enlarge- 
ment made  by  the  petitioners. 

In  pursuance  of  a  policy  followed  from  the  earliest 
settlement  of  Provo,  the  city  council,  in  1884  after  a 
long  and  thorough  investigation  and  examination  made 
the  following  division  of  the  waters  of  Provo  River: 

Provo  Bench  Canal  1/8  of  the  stream. 

Hooper  Ditch  1/15  of  the  stream. 

Enterprize  Canal  1/15  of  the  stream. 

Lake  Bottom  Canal  1/15  of  the  stream. 

Timpanogos  Irrigation  Co.  1/15  of  the  stream. 

Upper  East  Union  Canal  1/13  of  the  stream. 

East  Union  Canal  1/10  of  the  stream. 

Factory  Race  3/20  of  the  stream. 

City  Race  2/25  of  the  stream. 

Tanner  Race  1/10  of  the  stream. 

Little  Dry  Creek  1/20  of  the  stream. 

River  Bottom  Canal  .0910  of  the  stream. 


CITY  CONTROL  OF  WATER  99 

CONTROL  OF  CANALS  AND  WATERS 

In  the  construction  of  the  Weber  Canal  belonging  to 
Ogden  City,  the  work  was  done  by  contract.  Part  of 
the  funds  were  supplied  by  the  city  and  county  and  the 
remainder  worked  out  by  farmers  who  wanted  water 
for  their  farms.  The  other  canals  in  the  vicinity 
whether  to  supply  water  to  the  farms  or  to  the  city 
lots  were  dug  by  the  irrigators  upon  the  cooperative 
plan. 

Several  of  the  cities  as  soon  as  they  were  incorporated, 
asserted  and  exercised  control  over  the  irrigation  canals. 
In  most  instances  this  was  done  before  an  ordinance  was 
passed.  The  council  itself  simply  appointed  a  water- 
master  who  took  charge  before  passing  an  ordinance  cre- 
ating the  office  or  defining  its  duties.  Provo  in  1853 
passed  an  ordinance  asserting  authority  over  streams, 
canals  and  ditches  flowing  into  or  through  the  city  and 
placing  the  same  under  the  city  watermaster.  In  1866 
the  first  imperfect  ordinance  of  Provo  City  was  super- 
seded by  another  which  provided  that  "  all  canals  and 
ditches  now  used  or  that  may  hereafter  be  required 
for  conveying  water  from  Provo  River  into  said  city  for 
irrigation  or  other  purposes  are  hereby  placed  under 
the  supervision  of  a  city  watermaster  who  shall  be 
elected  by  the  city  council." 

After  the  passage  of  the  Irrigation  District  Act  in 
1865,  owners  of  sections  of  the  farm  lands  in  Utah 
County  desired  to  organize  into  an  irrigation  district  but 
Provo  City  held  strictly  to  its  right  to  control  the  waters 
of  Provo  Eiver  and  it  would  not  allow  farmers  using 
waters  from  this  source  to  organize  except  by  a  special 


100       DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

agreement  with  the  city.  In  order  to  control  the  situ- 
ation, the  city  council  passed  in  1872  an  ordinance  gov- 
erning the  organization  of  such  districts.  Section  5 
provided  that  "  If  an  irrigation  district  is  to  be  organ- 
ized upon  the  wish  of  the  farmers  it  is  to  be  with  the 
consent  of  the  city  council,  and  must  render  an  annual 
report  to  the  city  council  and  be  approved."  Section  VI 
of  the  same  ordinance  says :  "  When  a  majority  of  the 
water  users  of  a  ditch  not  running  through  the  city 
proper  organize  an  irrigation  district  it  shall  be  under 
the  supervision  of  the  city  and  a  written  contract  shall 
so  specify." 

Districts  were  organized  and  exercised  their  authority 
under  and  according  to  their  charter  from  the  territory. 
They  have  since  been  disorganized  and  the  city  has 
again  assumed  full  control.  To  say  the  least  this  was  a 
peculiar  arrangement.  The  Irrigation  District  Law 
was  a  territorial  act  and  it  would  naturally  appear  that 
if  the  farmers  were  eligible  to  organize  a  district  that 
they  would  not  be  subject  to  limitations  imposed  upon 
them  by  the  city.  In  practice,  however,  they  submitted 
to  the  requirements  imposed  by  the  city  ordinances. 

At  the  present  time,  Provo  City  exercises  full  control 
over  all  the  water  flowing  in  the  river  at  or  near  the 
mouth  of  Provo  Canyon  no  matter  whether  it  is  used 
for  power  or  irrigation  purposes.  The  taxation  of  city 
lots  and  farm  lands  for  the  maintenance  and  upkeep  of 
dams  and  canals  and  the  distribution  of  the  water  all 
rests  in  its  hands. 

Mills  and  factories  located  in  Provo  City  have  not 
been  allowed  to  acquire  vested  rights  in  the  use  of  the 
water  for  power  purposes.  The  city  merely  grants  them 


CITY  CONTROL  OF  WATE& 


a  franchise  terminable  at  the  end  of  fifty  or  ninety-nine 
years.  Several  companies  use  water  as  power  under  the 
franchise  privilege.  The  most  notable  of  the  users 
is  the  Provo  Manufacturing  Company.  The  provisions 
of  the  ordinances  under  which  the  privileges  are  as  fol- 
lows :  "  The  Provo  Manufacturing  Company  is  hereby 
authorized  under  the  water-master  and  in  accordance 
with  the  ordinance  regulating  irrigation  to  obtain  the 
necessary  water  from  Provo  River  through  the  city 
race  and  other  canals  to  run  their  machinery  and  the 
right  of  way  is  hereby  granted  the  said  Provo  Manu- 
facturing Company."  Section  284  says  that  "  the  fore- 
going is  regarded  as  a  contract  between  Provo  City,  and 
the  Provo  Manufacturing  Company  to  remain  in  force 
during  the  existence  of  the  corporation."  A  few  years 
ago  this  franchise  expired  and  a  similar  one  was  granted 
by  the  city. 

The  most  interesting  features  about  the  control  by 
Provo  City  of  the  waters  of  Provo  River  are  that  in  re- 
cent litigation  over  the  water  rights  of  the  river  that 
city  set  forth  the  claim  that  it  possessed  the  legal  right 
to  control  and  distribute  the  waters  of  that  stream  and 
the  courts  have  sustained  its  contention.  So  that  the 
city's  rights"  have  now  been  established  beyond  con- 
troversy. 

In  Salt  Lake  City  from  the  date  of  its  organization  in 
1851  the  corporation,  for  over  thirty  years,  exercised 
through  ordinances  and  special  council  action  complete 
control  of  the  irrigation  canals  and  streams  entering  or 
passing  through  the  city  limits.  In  the  early  days  a 
water  supervisor  was  put  in  charge  and  matters  needing 
the  council  action  or  approval  were  acted  upon  separ- 


102 '    DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

ately.  In  1855,  however,  the  city  council  prepared  a 
body  of  legislation  for  the  control  of  the  irrigation  sys- 
tem of  the  city.  Part  of  the  records  of  this  legislation 
is  lost,  but  sufficient  remains  together  with  the  council 
action  to  show  that  the  city  regarded  the  water  canals 
and  ditches  as  part  of  the  city  property,  set  aside,  as  it 
were,  for  a  special  purpose  like  the  city  parks.  In 
the  part  of  the  city  legislation  still  in  existence,  the 
watermaster  is  given  full  control  of  the  maintenance 
and  management  and  upkeep  of  the  irrigation  canals  of 
the  city.  The  city  council  itself  claimed  the  right  to 
grant  rights  of  way  for  the  construction  of  canals  and 
also  the  authority  to  grant  or  deny  the  diversion  of  water 
flowing  in  streams  within  its  boundaries. 

The  Jordan  River  flows  within  the  city  boundaries. 
George  A.  Smith  and  others  desired  to  place  a  dam  in 
the  stream  to  divert  water  to  some  farming  lands. 
They  petitioned  the  city  council  to  that  effect  and  the 
petition  was  granted  on  condition  that  the  dam  be 
erected  in  the  river  one-half  mile  above  the  Jordan 
Bridge.  The  petition  recognized  the  city  authority 
over  the  stream  but  the  council  went  farther  and. spec- 
ified where  the  dam  should  be  located.  Some  months 
later  when  it  was  found  undesirable  to  build  the  dam  at 
that  point  the  holders  of  the  grant  returned  to  the  coun- 
cil for  a  change.  In  1859  when  the  matter  of  making 
a  ditch  in  the  northern  part  of  the  city  for  the  benefit 
of  a  farmer  by  the  name  of  S.  Girder  came  up  the  re- 
quest was  referred  to  the  watermaster  for  a  report  before 
the  council  would  act.  In  the  same  year  the  council 
approved  a  request  to  build  canals  from  Taylor's  Mill 
and  from  the  Warm  Springs.  The  ordinance  in  1860 


CITY  CONTROL  OF  WATER  103 

asserts  the  city's  right  to  control  irrigation  and  fixes  a 
penalty  for  the  punishment  of  any  one  interfering  with 
water  in  the  canals.  The  same  authority  was  exercised 
by  the,  ordinance  of  1879  with  increased  penalties. 
Section  XV  says :  "  Public  water  ditches  are  defined  to 
be  first  the  natural  and  artificial  channels  through  which 
water  flows  into  Salt  Lake  City;  second  those  con- 
structed along  the  streets ;  and  third  those  through  lots 
and  blocks  for  public  use  and  over  which  the  city  exer- 
cises sole  and  exclusive  jurisdiction  and  control." 

In  Ogden,  the  city  began  in  1852,  1853,  1854,  by 
constructing  the  Weber  Canal  by  taxation  and  conse- 
quently controlled  it.  Every  other  canal  within  the 
city  was  similarly  controlled  by  the  ordinances  passed 
in  1857.  Logan  City  from  the  date  of  its  incorporation 
controlled  the  four  canals  running  through  its  limits. 
Logan  City  could  not  fully  control  Logan  River  because 
the  stream  formed  the  southern  boundary  of  the  city. 
As  late  as  1892  in  a  specific  agreement,  the  farmers,  the 
mill  owners  and  the  city  agreed  that  the  city  should 
control  the  irrigating  canals. 

The  question  naturally  arises:  how  is  it  if  these 
cities  exercised  such  complete  control  over  the  canals 
and  natural  streams  that  all  except  Provo  and  American 
Fork  have  lost  complete  control?  It  will  be  observed 
that  the  only  cities  exercising  control  of  irrigation 
water  are  those  where  the  farmers  have  real  or  potential 
control  of  the  city  councils.  In  American  Fork  the 
farming  population  constitutes  a  very  large  percentage 
of  the  total  population,  so  that  the  farmers  really  do 
control  the  irrigation  system  and  the  city  council  is 
only  a  means  to  that  end.  The  same  condition  prevails 


104      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

to  a  marked  degree  in  Provo  although  the  farming  pop- 
ulation is  not  so  dominant.  It  is  doubtful  if  Provo 
could  elect  a  council,  a  majority  of  whom  were  not 
farmers  or  whose  interest  and  welfare  were  not  parallel, 
if  not  identical,  with  the  farming  population  of  the 
city,  for  farming  is  the  foundation  industry  of  that 
section  of  the  State.  In  both  of  these  cases  there  is 
not  the  least  danger  of  alienation  of  the  irrigation  water 
by  sale.  NOT  does  the  growth  of  the  cities  cause  any 
danger  of  the  use  of  the  irrigation  water  for  city 
purposes. 

For  these  reasons,  the  farmers  have  felt  that  their 
interests  were  safe  under  municipal  control  until  re- 
cently when  their  respective  rights  have  been  reason- 
ably well  established  by  court  decrees.  With  Logan  the 
case  was  different.  The  river  never  was  completely 
under  city  control  because  the  city's  southern  boundary 
line  was  the  center  of  the  stream.  This  prevented  the 
city  from  exercising  exclusive  jurisdiction  over  it. 
Four  canals  run  north  through  the  city.  In  addition 
to  supplying  water  to  the  farm  lands  owned  by  residents 
of  Logan  they  furnish  water  for  Richmond,  Smithfield, 
Hyde  Park,  and  Benson.  The  residents  of  these  towns 
never  willingly  consented  to  Logan  City  Council  control- 
ling their  water  supply.  Especially  as  the  council  only 
aimed  to  control  the  canals  until  they  reached  the  boun- 
daries of  the  city  where  they  abandoned  them  to  the 
water  users  of  the  several  communities.  The  Provo  sys- 
tem was  logical.  It  claimed  the  right  to  control  the 
canals  and  streams  flowing  into  and  through  the  city 
to  the  lands  and  did  so  whether  the  lands  to  be  irri- 
gated lay  within  or  without  the  city  limits. 


CITY  CONTROL  OF  WATER  105 

The  fact  that  farm  lands  lay  beyond  the  city  limits  did 
not  matter.  The  city  watermaster  cared  for  the  canals 
and  distributed  the  water  to  the  users.  Logan  City 
would  not  do  that  and  dissatisfaction  prevailed.  As 
early  as  1886  a  committee  of  the  council  recommended 
that  the  city  turn  over  the  control  of  the  canals  to  the 
farmers  who  use  the  water.  The  recommendations  were 
not  adopted  and  the  city  continued  in  control.  But  the 
great  majority  of  the  farmers  desired  to  control  their 
own  irrigation  water  supply  because  of  economy  and 
efficiency  of  supply  and  also  to  have  a  united  control 
from  the  source  to  the  land.  The  city  council  was  made 
up  largely  of  farmers  and  they  could  see  no  advantage 
for  the  city  to  continue  in  charge,  so  in  1892  the  city 
turned  over  the  canals  to  the  farmers  who  had  built 
them  and  used  the  water. 

Ogden  and  Salt  Lake  City  began  as  agricultural 
communities  and  grew  into  commercial  and  manufact- 
uring cities.  As  long  as  they  remained  primarily  agri- 
cultural towns,  there  were  no  objections  to  the  irrigation 
waters  remaining  under  the  control  of  the  councils,  but 
agriculture  soon  became  of  minor  importance  to  these 
towns  and  the  farmers  became  concerned  as  to  the  secur- 
ity of  their  water  supply.  In  1890  Ogden  City  sold 
her  city  water  works  to  the  Bothwell  Canal  Company 
and  an  agitation  was  started  to  sell  the  Weber  Canal. 
Then  it  was  that  the  irrigators  began  a  movement  that 
resulted  in  the  city  relinquishing  control  and  in  the  or- 
ganization of  the  Weber  Canal  Company  which  took  over 
the  management  of  the  canal.  The  farmers  became 
stockholders  and  held  stock  in  proportion  to  the  amount 
of  water  they  had  used.  Salt  Lake  gradually  gave 


106      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

up  control  to  the  farmers  until  now  the  city  does 
not  exercise  any  control  over  the  irrigation  streams  or 
canals  within  its  boundaries  except  such  police  power 
as  is  necessary  for  the  protection  of  health  and  property. 

As  has  been  pointed  out,  the  city  councils  themselves 
exercised  control  over  the  making  of  grants  of  water 
and  also  the  rights  of  way  for  canals.  It  also  reserved 
to  itself  final  authority  in  the  adjudication  of  water 
disputes.  Section  13  of  the  ordinances  of  Salt  Lake 
of  1879  pertaining  to  irrigation  waters  says :  "  Any 
person  aggrieved  at  the  apportionment  of  water  allotted 
to  him  by  the  watermaster,  at  his  proportion  of  costs 
or  at  any  other  act,  claimed  to  have  been  done  by  virtue 
of  the  provisions  of  this  ordinance,  shall  on  written  com- 
plaint be  heard  by  the  city  council  who  shall  constitute 
a  board  of  equalization  to  hear  and  determine  such 
complaints.  But  such  complaints  must  be  presented 
to  the  council  within  ten  days  from  the  origin  of  the 
act  complained  of.  Said  board  may  remit  or  abate  for 
insane,  idiotic,  infirm,  or  indigent  persons  the  tax  or 
fee."  All  the  cities  by  ordinance  exercised  similar 
authority  but  as  we  shall  see  the  water-master  had  au- 
thority to  act  upon  cases  in  the  first  instance. 

During  the  irrigation  season,  water  needs  constant 
attention  day  and  night.  To  render  such  service  would 
not  be  consistent  with  the  duties  of  the  members  of  the 
council.  Even  when  the  city  was  small  there  were  sev- 
eral matters  requiring  their  official  attention  besides  irri- 
gation. Besides,  their  salaries  were  merely  nominal  and 
they  were  expected  to  act  more  as  advisers  to  the  active 
officials.  The  council  divided  itself  into  committees  the 
members  of  which  faithfully  gave  much  time  and  atten- 


CITY  CONTROL  OF  WATER  107 

tion  to  the  work.  There  was  a  committee  on  irrigation 
that  gave  freely  of  its  time  to  help  locate  canals  and  ad- 
judicate difficulties  which  arose.  However,  when  the 
control  of  the  waters  were  taken  over  by  the  city  from 
the  bishops  it  became  apparent  at  once  that  some  central 
authority  must  control  irrigation  water  flowing  in  the 
natural  streams  and  through  the  canals  and  ditches  so 
the  council  appointed  a  city  water  supervisor  or  water- 
master  who  immediately  took  control  over  the  entire 
irrigation  system  subject  to  the  supervision  of  the  coun- 
cil. One  of  the  strong  reasons  for  taking  irrigation  mat- 
ters out  of  the  hands  of  the  several  bishops,  in  fact  was 
to  provide  a  centralized  and  uniform  system  of  man- 
agement. 

The  city  water-master  was  elected  annually  by  the 
council.  At  first  he  was  paid  by  the  day  or  by  the  acres 
under  his  supervision,  but  as  the  work  grew  the  salary 
was  fixed  by  the  month,  for  the  irrigation  season,  and 
finally  by  the  year.  It  was  not  long  before  one  water- 
master  could  not  control  the  larger  streams  and  canals 
and  attend  to  the  distribution  of  the  water  among  the 
users,  so  assistant  water-masters  were  nominated  by  the 
users  of  water  upon  the  canals  and  then  they  were 
officially  appointed  by  the  water-master  whereupon 
they  were  given  certain  canals  to  supervise.  In  every 
city  investigated,  the  assistant  water-master  had  to  look 
to  the  water  users  for  their  compensation,  whom  they 
served.  In  Provo,  Ogden  and  Salt  Lake  Cities  in  the 
earlier  days  the  cities  were  divided  into  subdivisions 
known  as  wards  and  over  each  ward  was  placed  an 
assistant  water-master.  In  Logan  an  assistant  water- 
master  was  placed  in  charge  of  each  canal  flowing 


108      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

through  the  city.  Mr.  E.  F.  Sheets,  water-master  of 
Salt  Lake  City,  in  a  report  dated  September  10,  1855, 
set  forth  that  he  had  divided  the  water  among  the 
several  wards  to  the  best  of  his  ability;  had  appointed 
a  water-master  for  each,  ward ;  and  had  put  in  gates  at 
the  different  inlets  into  the  city.  His  claim  against  the 
city  was  $33.00  for  services  from  July  12,  to  Sept.  10, 
1855.  In  this  claim  a  charge  of  three  dollars  a  day 
was  made  for  the  actual  time  spent  in  the  service. 

A  city  ordinance  of  Salt  Lake  City,  in  1860  defined 
the  duty  of  the  water-master  much  as  they  had  been  ex- 
ercised for  the  past  seven  or  eight  years,  and  it  is  cited 
merely  to  show  what  they  were.  "  It  shall  be  his  duty 
to  see  to  the  erection  of  gates,  locks,  and  sluices  as  may 
be  necessary  to  admit  into  the  city  the  waters  rising  and 
flowing  therein  and  divide  the  same  through  the  city  as 
shall  best  serve  the  public  interests  for  irrigation,  domes- 
tic and  other  purposes.  Also  to  appoint  assistant  water- 
masters  in  each  of  the  bishop's  wards  of  the  city." 
The  Provo  ordinance  of  1864  is  almost  word  for  word 
like  the  Salt  Lake  ordinance  except  that  the  water- 
master  appointed  the  assistant  water-masters  of  the  va- 
rious wards  only  when  the  farmers  failed  to  do  so. 
This,  however,  was  soon  changed,  giving  to  the  city 
water-master  full  power  of  appointment  in  case  of  as- 
sistants. In  Ogden  City  the  water-master  was  re- 
quired to  make  and  present  to  the  council  each  year 
before  April  the  first  an  estimate  of  the  cost  of  cleaning 
and  repairing  the  canals ;  and  to  divide  the  water  flow- 
ing into  the  city  in  such  quantities  among  the  users  as 
will  serve  the  public  interest  for  irrigating  purposes. 

The  Logan  ordinance  is  of  a  more  recent  date.     It 


CITY  CONTROL  OF  WATER  109 

defines  the  duties  of  the  water-master  as  follows :  "  It 
shall  be  the  duty  of  the  water-master  to  regulate  within 
the  city  the  waters  flowing  therein  and  divide  the  same 
through  the  city  as  shall  subserve  the  public  interest 
for  irrigation,  domestic  or  other  purposes  and  under  the 
direction  of  the  city  council;  to  see  to  the  erection  of 
dams  or  sluices  as  may  be  necessary  and  to  adjust  all 
difficulties  arising  from  the  distribution  of  water." 
These  various  sections  of  different  dates  gave  a  general 
idea  of  the  duties  of  these  officials,  for  the  problems  were 
much  the  same  in  all  of  the  cities. 

In  most  of  the  cities,  the  users  of  water  were  required 
to  make  written  application  for  the  water  desired  for  the 
year,  and  before  the  first  day  of  April  the  water- 
master  was  required  to  make  the  apportionment  of 
water  to  the  several  gardens  and  farms.  This  appor- 
tionment did  not  provide  for  a  continuous  flow.  From 
the  earliest  history  of  Utah  water  has  been  used  in 
rotation.  Each  farmer  being  allowed  so  much  water 
for  so  many  hours.  The  periods  of  rotation  are  as  far 
apart  as  possible  according  to  the  nature  of  the  crops. 
Generally  the  size  of  the  stream  apportioned  to  an  irri- 
gator  was  as  large  as  one  man  could  control.  In  early 
days  it  was  generally  known  as  an  "  irrigation  stream," 
a  rather  indefinite  measurement  which  is  still  used  in 
some  localities.  Now,  however,  the  better  measurement 
is  by  second  feet.  The  rotation  method  of  apportioning 
water  makes  for  so  much  more  economic  use  where  the 
farms  are  small  than  the  continuous  flow  method. 
This  is  especially  true  in  case  of  small  streams. 

In  making  these  allotments  of  water  it  is  interesting 
to  notice  the  principles  underlying  the  division.  For 


110      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  community  system  of  settlement  employed  in  Utah, 
actuated  as  it  was  largely  by  religious  motives,  an  ap- 
portionment of  water  based  primarily  upon  the  amount 
of  labor  furnished  for  the  construction  of  the  canal 
would  not  care  for  the  incoming  new  settlers,  who  came 
individually  or  a  few  at  a  time.  The  new  settlers  could 
not  enlarge  the  canal  before  they  produced  a  crop.  It 
must  be  understood  that  the  Mormon  Church  in  its  col- 
onization nearly  always,  in  the  first  instance  sends  out 
enough  families  to  undertake  a  cooperative  construction 
of  the  canals,  roads,  and  other  public  undertakings.  In 
the  humid  regions  the  individual  reclamation  of  farms 
could  be  undertaken,  provided  the  Indians  were  under 
control,  but  this  was  impossible  in  the  arid  regions  for 
the  poor  colonizer.  In  undertakings  of  any  size,  the 
canals  had  to  be  built  collectively.  By  this  it  is  not 
meant  that  the  first  settlers  upon  a  stream  exhausted  the 
supply  of  water  or  cultivated  all  the  available  lands. 
There  were  ordinarily  plenty  of  openings  for  additional 
settlers  if  they  were  allowed  to  use  enough  water  to  pro- 
duce crops  until  they  could  enlarge  the  canals  and 
increase  the  water  supply.  This  was  the  policy  ordi- 
narily pursued  and  the  one  that  enabled  the  new  comers 
to  get  a  start. 

DUTY  OF  WATER 

In  early  Utah,  the  use  of  irrigation  water  in  the  cities 
and  the  territory  was  considered  from  the  point  of  view 
of  public  benefit  or  utility.  An  ordinance  of  Salt  Lake 
City,  in  1866,  in  defining  the  duties  of  the  water- 
master  says  that  he  shall  divide  the  water  flowing  into 
and  through  the  city  "  as  shall  best  serve  the  public  in- 


CITY  CONTROL  OF  WATER  111 

terest  for  irrigation,  domestic  and  other  purposes."  A 
new  ordinance  in  1879  dealing  with  the  same  subject 
provided  that  the  water  should  be  allotted  "  among  the 
applicants  entitled  to  use  a  portion  of  said  water  with 
respect  to  time  and  quantity  of  water,  according  to  the 
extent  of  land  specified  in  the  respective  applications." 
The  ordinance  of  1883  said  that  the  water  should  be 
divided  according  to  the  "  amount  of  water  available  in 
proportion  to  the  quantity  of  land." 

The  Provo  ordinance  of  1864  said  that  the  water- 
master  should  divide  the  water  among  the  several  canals 
"  as  shall  best  serve  the  public  interest  for  irrigation, 
domestic  and  other  purposes,"  and  the  assistant  water- 
master  was  required  to  divide  the  water  among  the  users 
from  the  canals  under  his  control,  "  as  he  may  deem 
necessary  and  just." 

An  Ogden  ordinance  of  1870  requires  the  water- 
master  to  divide  the  water  among  "  the  inhabitants  in 
such  manner  and  quantities  as  shall  be  just."  These 
selections  embody  the  spirit  that  made  the  early  settle- 
ment of  Utah  possible  and  successful.  It  was  a  spirit 
of  "  live  and  let  live."  Not  how  much  water  could  be 
beneficially  used  but  how  little  was  necessary  for  crop 
production.  How  much  could  be  spared  to  the  new 
comer  in  a  settlement  so  that  he  could  produce  a  crop. 
It  was  not  necessarily  a  question  as  to  whether  he  had 
worked  for  the  water  but  did  he  need  it,  and  would 
the  dividing  with  him  actually  and  seriously  injure 
some  one  else.  In  other  words  what  was  the  best  duty 
of  water  for  the  community?  The  Mormon  Church 
and  the  community  spirit  made  this  system  territorial 
in  extent.  It  was  the  same  spirit  that  created  small  sub- 


112      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

divisions  of  land  and,  where  necessary,  economical  and 
beneficial  use  of  water.  It  was  the  cooperative  spirit 
that  became  the  foundation  stone  of  the  State. 

TAXATION 

It  has  often  been  maintained  that  the  real  test  of 
control  in  government  is  the  authority  exercised  over 
taxation  and  expenditure.  In  the  securing  of  revenue 
for  the  maintenance  and  upkeep  of  canals  two  forms 
were  exercised.  First  in  the  construction  of  canals  the 
common  method  was  to  have  the  irrigators  supply  labor 
somewhat  in  proportion  to  the  water  they  desired  for 
their  land.  This  system  was  not  followed  strictly  for 
the  widows,  the  cripples,  and  the  aged  were  often  exempt 
or  partially  so  from  construction  charges  and  as  has 
already  been  pointed  out  the  new  comers  were  frequently 
supplied  water  first  and  the  labor  done  afterwards. 
But  the  common  method  in  the  cities  or  on  the  outside 
was  cooperative  community  undertakings,  there  were 
however  exceptions.  Besides  construction  the  canals 
had  to  be  operated. 

For  the  purpose  of  keeping  the  system  in  order  prior 
to  1855  Salt  Lake  City  levied  a  tax  of  twenty  cents 
an  acre  on  farm  lands,  but  gradually  increased  it  to 
forty  cents  an  acre.  The  levy  on  the  city  lots  was 
about  one  dollar  each.  These  taxes  were  payable  in 
money  or  its  equivalent  and  were  used  to  repair  or  in- 
stall headgates  and  flumes  and  to  pay  the  water-master's 
salary.  Naturally  the  levies  varied  from  year  to  year 
as  the  necessities  required.  As  the  levies  were  ordi- 
narily made  early  in  April  they  were  based  upon  an 
estimate  furnished  to  the  council  by  the  water-master. 


CITY  CONTROL  OP  WATER  113 

In  addition  to  the  foregoing  levy  the  farmers  were 
required  to  supply  the  necessary  labor  for  canal  clean- 
ing. The  requirements  of  each  farmer  were  in  propor- 
tion to  the  acreage  irrigated.  A  failure  to  do  the  work 
and  pay  the  taxes  resulted  in  a  denial  of  the  use  of  water, 
unless  the  city  council  remitted  both  levies  which  was  fre- 
quently done  to  those  unable  to  pay  them.  In  1878  the 
city  council  levied  a  tax  of  one  and  one-fourth  mills  on 
all  the  property  of  the  city.  So  far  as  can  be  deter- 
mined, taxation  was  resorted  to  again  and  again.  In 
the  case  of  any  emergency  caused  by  a  flood  requiring  an 
additional  expenditure  the  council  made  an  emergency 
levy.  The  expenditures  ran  from  $1603.20  in  1879  to 
$11,587.39  in  1889. 

In  Provo  the  same  policy  was  pursued  in  respect  to 
the  cleaning  of  the  canals  and  ditches,  i.  e.,  the  farmers 
were  required  to  do  the  labor.  An  additional  tax  of 
one  dollar  was  levied  on  all  city  lots  and  fifty  cents  an 
acre  on  the  farm  lands.  In  Salt  Lake  these  taxes  were 
all  payable  before  the  delivery  of  water.  The  policy  of 
collecting  in  advance  was  tried  in  Provo  for  over  twenty 
years,  but  in  1872  the  levy  for  irrigation  purposes  was 
made  collectable  in  the  fall  at  the  office  of  the  city 
treasurer.  The  tax  for  1918  was  one  dollar  per  acre  for 
the  farm  lands  and  seventy-five  cents  for  each  city  lot. 
The  councils  of  both  Salt  Lake  and  Provo  had  almost 
regularly  appropriated  small  sums  for  the  support  and 
maintenance  of  the  different  canal  systems  entering 
the  city. 

Brigham  Young  as  Trustee-in-Trust  in  1862  had  of- 
fered to  invest  $50,000  of  the  Mormon  Church  funds 
toward  the  construction  of  the  Jordan  Canal.  It  re- 


114      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

mained  for  Ogden  City  in  the  case  of  the  Weber  Canal 
to  set  out  boldly  in  the  construction  of  an  irrigation 
canal  by  taxation.  In  1852-4  Ogden  City  spent  $4562 
upon  the  Weber  Canal.  Of  this  amount  $1805.45  was 
appropriated  from  the  city  treasury  and  $2756.97  bor- 
rowed from  the  county.  The  plan  was  to  pay  the  county 
the  money  borrowed,  but  when  the  city  could  not  do 
it  the  county  was  persuaded  to  accept  water  stock  in  lieu 
of  these  loans.  In  1853  the  county  loaned  the  city 
every  cent  it  collected  except  a  small  amount  to  meet 
incidental  expenses.  The  farmers  did  all  they  could 
in  the  way  of  labor,  receiving  in  payment  water  for  their 
lands.  The  creation  and  success  of  the  Weber  Canal 
meant  the  life  of  the  community  and  every  agency  was 
employed  towards  its  construction.  For  many  years 
city  funds  were  appropriated  toward  its  betterment  and 
enlargement.  The  records  of  these  early  times  are  in- 
complete and  it  is  now  possible  to  get  only  a  glimpse  of 
what  was  done. 

In  1870  the  city  appropriated  $700  toward  the  com- 
pletion of  the  Ogden  Canal.  In  the  end  the  city  lost 
control  over  these  canals  and  also  forfeited  the  funds  ex- 
pended. It  was,  however,  a  splendid  investment.  It 
meant  greatly  increased  returns  in  taxes  as  a  financial 
reward  and  better  than  all  it  meant  the  establishment 
of  prosperous  communities.  In  the  light  of  these  ex- 
periences it  is  interesting  and  even  amusing  to  hear 
some  of  our  irrigation  reclamation  advisers  tell  how  irri- 
gation colonization  should  be  carried  on,  and  made  to 
pay  from  the  beginning. 

The  maintenance  and  operation  tax  in  Ogden  in  1853 


CITY  CONTROL  OF  WATER  115 

was  $3.00  for  each  city  lot  and  $1.00  per  acre  for  farm 
lands;  in  1855  lots  $1.50  each  and  farm  lands  50  cents 
per  acre;  in  1861  lots  $3.00  each  and  farm  lands  75 
cents  per  acre;  in  1865  lots  $6.00  each  and  farm  lands 
$2.00  per  acre;  in  1868  lots  $4.00  each  and  farm  lands 
$2.00  per  acre;  and  in  1872  lots  $2.00  each  and  farm 
lands  $1.00  an  acre. 

The  canals  in  Logan  were  built  by  the  farmers  and 
flouring  mills  before  the  city  was  incorporated.  The 
charter,  however,  gave  the  city  control  which  was  exer- 
cised from  1866  until  1892.  For  several  years  the  city 
levied  an  acreage  tax  for  maintenance  and  operation. 
The  city  employed  and  paid  a  water-master  whose  duty 
it  was  to  control  the  water  flowing  into  and  through  the 
canal  within  the  city  limits.  Beginning  in  1871,  the 
acreage  tax  being  unsatisfactory,  the  city  levied  annually 
for  twenty  years  a  tax  of  one  and  one-fourth  mills  upon 
all  the  taxable  property  of  the  city  for  the  maintenance 
and  operation  of  the  canal  system  within  its  limits. 
This  was  expended  by  the  city  water-master  for  the 
construction  of  headgates  and  dams  both  in  the  canals 
and  in  Logan  River.  If  there  was  a  balance,  it  was 
applied  upon  the  salary  of  the  water-master;  if  a  def- 
icit it  was  made  up  from  the  general  revenues  of  the 
city.  In  the  upkeep  charges  the  city  required  the 
mills  to  bear  one-third.  As  these  taxes  fell  upon  con- 
siderable property  not  directly  benefited  by  irrigation 
it  tended  to  lighten  the  burden  upon  the  farmer  in  the 
cost  of  maintenance  and  operation.  By  this  arrange- 
ment the  farmers  supplied  the  labor  necessary  for  clean- 
ing the  canals  and  paid  the  assistant  water-masters  on 


116     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  canal  that  furnished  them  water ;  all  other  expenses 
including  the  water  tax  on  the  city  lots  was  borne 
by  the  city.  The  control,  notwithstanding  the  financial 
relief,  was  not  satisfactory  to  the  farmers  and  the  city 
finally  surrendered  it. 


CHAPTEE  VII 

IRRIGATION    DISTRICTS 

By  several  writers  it  has  been  maintained  that  the 
Wright  Irrigation  District  Law  of  California  was  a  new 
departure  in  irrigation  institutions  in  the  United  States 
as  well  as  the  first  of  its  kind.  A  study  of  its  history 
at  home  and  in  foreign  countries  reveals  the  fact  that 
the  Wright  Act  was  not  the  first  of  its  kind  and  that  in 
all  probability  its  author  was  familiar  with  similar 
foreign  institutions.  A  careful  study  of  an  earlier  at- 
tempt, in  the  Utah  Irrigation  District  Act  of  1865, 
shows  that  it  possessed  the  essential  features  of  the  Cali- 
fornia law  that  came  thirty  years  later,  except  the  au- 
thority to  issue  bonds,  which  right,  unregulated  as  it 
was,  in  the  great  majority  of  cases,  brought  disaster 
upon  the  districts  organized  under  the  Wright  Act. 

The  Utah  Act  of  1865  provided  that  whenever  a 
majority  of  the  citizens  of  any  county  or  part  thereof 
represented  to  the  county  court  that  there  was  plenty  of 
unappropriated  water  which  if  applied  to  the  cultivated 
or  to  the  uncultivated  lands  would  greatly  improve  the 
agricultural  interests  of  the  county,  the  county  court 
was  authorized  to  organize  the  whole  county  or  a  part 
of  it  into  an  irrigation  district.  The  conditions  of  or- 
ganization were  that  the  farmers  included  should  have 
water  according  to  their  needs. 

117 


118     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  citizens  of  an  irrigation  district  after  they  had 
been  organized  by  the  court  were  to  meet  in  a  mass 
meeting  and  elect  viva  voce  not  less  than  three  nor  more 
than  thirteen  trustees,  a  secretary  and  a  treasurer,  and 
at  the  same  time  to  decide  whether  the  tax  which  was 
to  be  levied  should  rest  upon  the  lands  to  be  benefited  or 
upon  all  the  property  within  the  district. 

The  duty  of  locating  the  proposed  canal,  of  determin- 
ing the  land  to  be  benefited,  of  estimating  the  costs  for 
claims,  flumes,  and  the  like,  in  the  canal  itself  and  the 
taxable  property  rested  upon  the  board  of  trustees. 
The  estimates  when  made  were  reported  to  the  County 
Court.  After  this  report,  containing  a  careful  estimate 
of  the  entire  cost  of  the  proposed  system  was  in  the 
hands  of  the  court,  the  court  was  required  to  give  six 
days'  notice  of  a  public  election.  A  polling  place  was 
then  provided  for  each  -precinct  and  the  electors  were 
asked  to  vote  upon  the  following  propositions.  "  First ; 
do  you  mutually  agree  to  pay  per  cent,  property  tax 
or  per  acre  land  tax  to  construct  the  proposed  ditch  or 
canal  ?  Second ;  do  you  approve  the  action  of  the 
mass  meeting  in  the  election  of  officers  ?  "  The  votes 
were  counted  and  if  two-thirds  of  the  votes  were  in  the 
affirmative  the  tax  was  levied  and  collected  by  the 
county  officials.  It  was,  however,  provided  that  not  to 
exceed  one-half  of  the  tax  levied  shall  be  collected  at 
one  time.  The  remaining  part  was  to  be  collected  as  the 
work  progressed.  If  fewer  than  two-thirds  of  the  votes 
cast  were  In  the  affirmative  all  of  the  previous  proceed- 
ings were  declared  void.  If  the  voters  were  not  in  favor 
of  the  officers  chosen,  new  officers  could  be  chosen  with- 
out interfering  with  the  organization  of  the  district. 


IRRIGATION  DISTRICTS 

The  officers  were  chosen  for  a  term  of  one  year  and 
placed  under  a  bond. 

If  the  levied  taxes  were  found  to  be  insufficient  to 
complete  the  project  the  trustees  could  ask  for  an  addi- 
tional levy  based  upon  further  estimates.  The  request 
could  be  voted  upon  at  any  regular  election  and  if  car- 
ried by  a  majority  of  two-thirds  would  be  assessed  and 
collected  as  were  the  first  taxes.  The  organization  of 
the  board  of  trustees  consisted  of  a  president,  a  secre- 
tary, a  treasurer  and  such  other  officers  and  employees  as 
were  essential  to  carry  on  the  work  of  the  district.  The 
board  was  required  to  keep  a  correct  account  of  all  its 
receipts  and  expenditures,  and  complete  minutes  of  all 
meetings  held,  and  a  record  of  all  contracts  entered  into. 
Annual  reports  of  each  district  were  required  to  be  made 
to  the  legislative  assembly. 

The  trustees  had  the  right  to  sue  and  to  be  sued  in  the 
name  of  the  district  and  to  hold  such  real  and  personal 
property  as  may  be  necessary  for  the  conducting  of  the 
business  of  the  district. 

If  the  voters  thought  it  desirable  to  appropriate  water 
originating  in  another  county  they  could  do  so,  provid- 
ing it  did  not  injure  any  individual  in  the  community. 
The  right  of  the  exercise  of  eminent  domain  was  not 
allowed  except  for  the  right  of  way  of  the  canal.  The 
right  to  construct  reservoirs  was  granted  but  restrictions 
and  limitations  were  placed  upon  them  as  well  as  upon 
the  use  and  appropriation  of  water. 

On  the  completion  of  the  canal  and  dams,  they  were  to 
remain  under  the  control  of  the  irrigation  district.  The 
upkeep  was  provided  for  by  a  tax  levy  upon  the  land  or 
property  holders  as  the  case  might  be.  In  case  it  was 


120      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

desired  to  enlarge  the  system  it  was  decided  by  a  two- 
thirds  majority  vote  and  the  necessary  tax  levied  in 
the  manner  already  outlined.  The  districts  were  held 
liable  for  damages  for  the  break  of  any  canal  or  dam. 
The  damages  were  to  be  determined  by  an  arbitration 
committee  of  three. 

The  act,  as  passed  in  1865,  was  applied  only  to  canals, 
dams,  and  reservoirs  to  be  constructed;,  but  in  1866  it 
was  amended  so  as  to  admit  of  canals,  dams,  and  reser- 
voirs already  in  existence  taking  advantage  of  its  pro- 
visions. 

Considering  the  fact  that  the  land  office  did  not  open 
for  business  in  Utah  until  April  1,  1869,  this  act  went 
just  as  far  as  it  could  go.  It  provided  for  the  collection 
of  the  tax  levies  in  the  same  manner  as  the  regular  taxes. 
Of  course  it  did  not  provide  for  the  sale  of  the  lands  in 
the  event  of  a  failure  to  pay  the  taxes,  since  the  settlers 
had  only  squatters7  claims  to  their  lands.  The  act  was 
so  drawn  that  just  as  soon  as  such  means  could  be  em- 
ployed to  collect  territorial  taxes  it  could  be  employed 
for  these  taxes. 

The  law  did  not  provide  for  bonding  the  district  as 
did  the  Wright  Act  but  what  bonding  value  did  these 
lands  have  in  the  Far  West  in  1865  before  even  a  rail- 
road had  been  built  across  the  continent. 

The  bonding  features  of  the  Wright  Act  were  largely 
responsible  for  considerable  high  finance  and  the  conse- 
quent failure  of  so  many  projects  organized  under  it. 
The  facts  were  that  taxation  was  the  only  feasible 
method  of  providing  an  irrigation  system  for  these  arid 
lands.  It  was  the  faith  of  the  men  who  expected  to  use 
the  lands  to  produce  crops  and  who  were  willing  to  pay 


IRRIGATION  DISTRICTS  121 

their  taxes  in  labor  in  order  to  secure  water  for  their 
soil  that  made  the  system  a  success.  There  was  no  spec- 
ulation found  in  Utah  districts,  except  the  chances  that 
the  settlers  were  willing  to  undertake  to  establish  homes. 
If  the  same  spirit  had  been  back  of  like  undertakings 
where  bonding  was  so  largely  resorted  to,  fewer  bonds 
would  have  been  issued  and  more  of  the  enterprises 
would  have  been  a  success.  On  the  contrary,  in  too 
many  instances,  projects  were  undertaken  by  promoters 
who  hoped  to  make  a  fortune  for  themselves  and 
cared  little  for  the  ultimate  success  of  the  undertak- 
ings only  in  so  far  as  it  furnished  good  speculative  re- 
turns. This  end  was  entirely  foreign  to  the  aim  and 
purpose  of  the  Act  of  1865. 

A  few  districts  were  organized  almost  immediately. 
On  January  25,  1865,  the  County  Court  of  Salt  Lake 
County  undertook  to  organize  into  an  irrigation  district 
the  territory  on  the  east  side  of  the  Jordan  Kiver.  The 
records  state  that  upon  the  request  of  the  people  occupy- 
ing this  land  and  desiring  to  secure  more  water  for  irri- 
gation the  court  ordered  that  "  all  that  portion  of  Great 
Salt  Lake  County  lying  east  of  the  Jordan  River  be  and 
it  is  hereby  declared  an  irrigating  district  and  designated 
the  Deseret  Irrigation  and  Canal  Company."  The  law 
was  complied  with  fully  and  the  organization  completed. 
The  canal  to  be  constructed  was  to  be  32  miles  in 
length,  20  feet  in  width  at  the  bottom  and  capable  of 
carrying  a  stream  of  water  three  feet  deep.  It  was 
estimated  to  cost  $403,000  and  to  irrigate  21,750  acres 
of  land.  An  interesting  feature  of  the  proposed  system 
was  that  it  was  to  be  provided  with  locks  and  the  canal 
was  to  be  used  for  transportation.  It  has  a  curious 


122      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

connection  with  the  period  of  1840-50  in  the  Eastern 
States  when  canal  construction  for  water  transportation 
engaged  the  activities  of  the  towns,  counties  and  states 
and  private  corporations.  The  development  and  con- 
struction of  railroads  twenty  years  before  had  made  the 
eastern  canals  for  transportation  purposes  unnecessary 
and  in  most  cases  economically  inefficient  in  competition 
with  the  railroads.  The  same  thing  took  place  in  Utah 
with  the  advent  of  the  railroad  in  1869.  The  directors 
of  this  proposed  system  which  was  not  built,  included 
Brigham  Young  and  other  leading  men  of  the  territory. 

In  1867  the  territory  west  of  the  Jordan  River  was 
organized  into  a  district  on  petition  of  the  citizens  own- 
ing the  land.  It  had  the  same  purpose  in  view  namely, 
irrigation  and  transportation.  It  was  known  as  the 
West  Jordan  Irrigation  District.  Three  irrigation  dis- 
tricts were  organized  in  Utah  County  in  1865  and  1866. 
Notwithstanding  the  unsatisfactory  conditions  of  the 
county  records  on  such  matters  it  would  be  a  conserva- 
tive estimate  to  place  the  number  of  such  organizations 
in  the  territory  at  about  a  hundred.  In  Cache  County 
alone  there  were  twelve  such  organizations.  That  was 
about  the  highest  number  in  the  State  for  one  county 
but  several  counties  organized  six  or  seven  districts. 

In  the  working  of  the  law  certain  features  had  proved 
especially  defective.  The  law  of  1865  made  it  neces- 
sary to  levy  all  the  tax  at  one  time.  Half  of  it  was  to 
be  collected  at  once  but  one-half  could  be  deferred.  The 
law  of  1878  made  it  obligatory  to  give  ten  days7  notice 
through  a  newspaper  having  general  circulation  in  the 
district  and  also  to  post  notices  in  three  public  places  of 
any  district  meetings  held  to  consider  estimates  of  canal 


IRRIGATION  DISTRICTS  123 

costs  or  to  levy  a  new  or  an  additional  tax.  It  repealed 
the  provisions  which  allowed  the  district  organization  to 
levy  its  tax  on  all  the  taxable  property  of  the  district  and 
made  it  a  charge  upon  the  farm  land  to  be  irrigated. 
The  law  of  1882  increased  the  term  of  the  trustees  to 
two  years.  The  law  of  1884  made  some  changes  but  it 
mainly  concerned  itself  with  codifying  amendments  pre- 
viously passed.  The  law  of  1884  did,  however,  make  it 
specific  that  water  would  not  be  supplied  according  to 
the  needs  of  the  farmers  unless  they  paid  their  propor- 
tion of  the  construction  and  upkeep  of  the  canal.  The 
user  in  the  event  of  a  failure  to  pay  his  taxes  not  only 
lost  the  use  of  the  water  but  also  his  right  to  vote  and 
hold  office.  The  law  of  1865  made  the  taxes  collectable 
the  same  as  territorial  taxes.  At  that  time  the  settlers 
did  not  have  title  to  their  land  so  the  lands  could  not  be 
sold  to  pay  the  taxes  levied.  But  as  the  years  passed 
the  lands  were  surveyed  and  titles  were  issued  by  the 
Government  to  the  occupiers,  and  then  water  taxes  be- 
came a  lien  against  the  property.  It  was  obviously 
not  intended  in  the  law  of  1865  that  the  taxes  of  the 
irrigation  district  should  be  a  charge  against  the  land, 
but  as  the  law  stood  it  was  open  to  that  construction,  so 
the  law  of  1884  provided:  "That  no  tax  created  or 
payable  by  this  act  shall  be  or  create  a  lien  upon  the 
land." 

It  also  provided  that  "  not  to  exceed  one-half  of 
the  tax  shall  be  collected  at  one  time  and  the  residue  as 
the  work  progresses."  Amendment  of  the  law  by  the 
act  of  1892  provided  that  the  vote  should  not  be  per 
capita  as  it  had  been  in  the  past  but  the  owner  of 
water  should  have  a  vote  for  each  acre  of  land  watered. 


124     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

This  was  a  logical  move  after  placing  the  tax  upon  the 
land  according  to  the  acreage  and  freeing  the  town  prop- 
erty from  any  of  the  burdens.  By  the  same  law  the 
taxes  were  made  a  lien  upon  all  water  rights.  The  irri- 
gation district  law  was  repealed  in  1897  except  for  the 
districts  already  organized. 

The  irrigation  districts  of  Utah  were  in  reality  coop- 
erative organizations  for  canal  construction.  Much  of 
the  canal  construction  had  heen  done  in  Utah  by  volun- 
tary cooperation  but  as^is  true  in  all  social  undertakings 
there  had  been  a  certain  percentage  of  "  slackers  "  and 
the  irrigation  district  plan  proved  an  effective  means  of 
compelling  such  men  to  do  their  part  in  the  construc- 
tion of  canals  and  dams.  That  is  the  reason  why  the  act 
took  hold  so  early  and  that  such  a  wide  application 
existed  in  the  territory.  In  the  organization  of  the  dis- 
tricts some  serious  mistakes  were  made,  chief  of  which 
was  the  inclusion  of  large  areas  in  each  district.  The 
included  lands  divided  themselves  into  two  classes: 
First :  large  areas  were  included  that  could  not  be  irri- 
gated by  any  system  of  canals ;  and  secondly  lands  that 
were  capable  of  irrigation  but  were  not  covered  by  the 
canals  as  built.  In  the  early  stages  canals  were  planned 
and  built  to  supply  water  to  the  most  accessible  arable 
lands  and  the  lands  receiving  water  were  taxed  for 
construction,  maintenance  and  upkeep.  No  taxes  were 
levied  upon  accessible  lands  of  the  districts  that  did  not 
receive  water. 

For  some  years  such  an  arrangement  proved  satis- 
factory, but  as  population  increased  and  new  settlements 
were  established  in  the  districts  demands  were  made 
upon  the  district  organization  to  build  new  canals  or  to 


IRRIGATION  DISTRICTS  125 

enlarge  old  ones  to  supply  the  needs  of  the  new  land  it 
was  proposed  to  bring  under  cultivation.  In  general 
these  requests  were  promptly  refused  upon  the  ground 
that  the  system  already  in  existence  was  all  that  was 
intended  and  that  it  would  be  an  injustice  to  levy  a 
tax  upon  the  lands  already  under  cultivation  to  enlarge 
the  old  canals  or  to  build  new  ones  to  supply  the  new 
lands  when  they  had  not  been  taxed  to  build  canals  in 
the  first  instance.  There  was  some  justice  in  this  con- 
tention due  to  the  policy  of  not  taxing  in  the  beginning 
all  arable  lands  for  the  construction  of  the  system.  On 
the  other  hand,  no  other  legal  organization  was  pos- 
sible for  those  within  the  district  who  were  not  receiv- 
ing its  benefits. 

In  the  case  of  Harris  v.  Tarbet  the  Supreme  Court 
of  the  State  held  that  the  whole  area  included  in  the 
district  was  under  the  control  and  jurisdiction  of  the 
authorities  of  the  irrigation  districts  for  irrigation  pur. 
poses  and  that  they  had  no  authority  to  establish  arbi- 
trarily a  limit  to  the  system  of  a  district  or  to  confine 
control  to  a  certain  part  of  the  system  or  to  include  or 
exclude  certain  lands  in  the  tax  levies  for  construction, 
maintenance  and  upkeep,  but  that  all  lands  must  be 
taxed.  This  decision  led  to  a  rapid  disorganization  of 
the  districts,  for  many  of  them  embraced  arid  lands 
much  greater  in  area  than  the  irrigated  lands.  In  sev- 
eral districts  the  positions  of  these  lands  were  such  as  to 
make  it  impossible  to  irrigate  them  at  any  time.  In 
other  cases  the  districts  embraced  swamp  lands  needing 
drainage  rather  than  irrigation.  It  would  be  obviously 
unjust  to  tax  such  lands  for  the  upkeep  of  an  irrigation 
system,  so  the  districts  were  disorganized  and  the  canals 


126     DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

were  organized  into  stock  companies  which  were  very 
feasible  organizations,  especially  as  the  use  of  water 
grew  more  valuable  and  taxes  could  be  levied  directly  on 
the  stock  for  the  canal  expenses. 

A  new  act  was  passed  in  1909.  Twelve  years  had 
elapsed  since  the  repeal  of  the  old  law.  The  demand 
came  this  time  from  those  who  wanted  to  proceed  more 
along  the  lines  of  the  Wright  Act  of  California  and 
bond  the  land  for  the  construction  of  reservoirs,  dams 
and  canals.  The  law  provided  that  the  initial  steps 
were  to  be  taken  by  a  majority  of  the  land  owners  of  the 
proposed  district,  who  at  the  same  time  owned  a  major- 
ity of  the  whole  number  of  acres  to  be  included,  petition- 
ing the  Board  of  County  Commissioners  for  the  creation 
of  an  irrigation  district.  In  1917  the  law  was  amended 
so  that  the  Governor  of  the  State  also  had  the  right  to 
file  such  a  petition.  This  was  done  because  the  State 
had  constructed  reservoirs  and  canal  systems  and  it 
was  thought  that  as  the  lands  were  settled  it  would  be 
advantageous  to  deal  with  the  settlers,  if  they  were 
organized  into  an  irrigation  district. 

Notice  of  the  intention  of  any  one  to  petition  the 
Board  of  County  Commissioners  for  the  creation  of  a 
district  must  be  given  by  publication  for  two  weeks  in 
a  newspaper  having  general  circulation  in  the  county. 
The  notice  must  state  the  time  and  place  where  the  peti- 
tion is  to  be  presented  and  give  a  general  idea  of  the 
territory  to  be  included.  At  the  hearing  held  by  the 
Board  of  County  Commissioners  they  must  check  the 
petition  to  see  if  it  includes  enough  names  and  a  major- 
ity of  the  acreage  intended  to  be  covered.  They  also 
have  authority  to  include  lands  not  mentioned  in  the 


IRRIGATION  DISTRICTS  127 

petition  upon  the  request  of  the  owners  and  to  exclude 
lands  included  in  the  petitions  if  they  are  to  receive  no 
henefit  from  the  proposed  system.  They  then  define 
the  exact  boundaries  of  the  district,  divide  it  for  admin- 
istrative purposes  into  three  subdivisions  and  ordered 
an  election.  At  such  elections  owners  of  agricultural 
lands  are  entitled  to  cast  one  vote  for  each  acre  or  frac- 
tion thereof  owned  by  such  elector.  The  ballots  were 
to  read:  "-Irrigation  District  Yes"  or  "Irrigation 
District  !N"o,"  also  the  names  of  the  nominees  for  the 
positions  of  directors.  In  order  to  check  as  to  the  cor- 
rectness of  the  number  of  acres  voted  by  each  elector,  it 
was  required  that  the  voter  sign  the  ballot.  If  the 
election  shows  that  the  majority  of  the  legal  electors  have 
voted  in  the  affirmative  the  Board  of  County  Commis- 
sioners shall  declare  the  territory  duly  organized  as  an 
irrigation  district  and  the  persons  receiving  the  highest 
number  of  votes  elected  as  directors.  The  law  pro- 
hibits the  organization  of  more  than  one  district  for  a 
given  territory.  The  Board  of  County  Commissioners 
is  required  to  file  a  map  of  the  district  with  the  County 
Clerk  after  which  the  affairs  are  turned  over  to  the  duly 
elected  officers.  The  organization  of  the  directors  fol- 
lows the  ordinary  course  pursued  by  corporations  in  the 
election  of  a  chairman,  a  secretary,  etc.  The  law  defines 
the  duties  of  the  board  of  directors  "  to  adopt  a  seal,  man- 
age and  conduct  the  affairs  and  business  of  the  business 
of  the  district ;  make  and  execute  all  necessary  contracts, 
employ  such  agents,  attorneys,  officers  and  employees  as 
may  be  required,  and  prescribe  their  duties,  establish 
equitable  rules  and  regulations  for  the  distribution  and 
use  of  water  among  the  owners  of  said  land,  and  gener- 


128      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

ally  to  perform  all  such  acts  as  shall  be  necessary  to  carry- 
out  the  purposes  of  this  act."  The  Board  has  power  in 
order  to  carry  out  the  provisions  of  the  law  "  to  con- 
struct, acquire  or  purchase  any  and  all  canals,  ditches, 
reservoirs,  sites,  water,  water  rights,  rights  of  way  or 
other  property  necessary  for  the  use  of  the  district." 

An  amendment  to  this  provision  in  1911  authorized 
the  purchase  or  enlargement  of  canals  already  in  ex- 
istence but  this  was  limited  in  1913  by  the  requirement 
that  an  irrigation  district  could  not  purchase  less  than 
a  controlling  interest  in  any  mutual  water  company.  A 
further  restriction  was  placed  upon  the  board  of  direc- 
tors in  entering  into  contracts  by  requiring  that  all  con- 
tracts involving  between  ten  and  twenty-five  thousand 
dollars  must  have  the  written  approval  of  a  majority  of 
the  land  owners  of  the  district  according  to  the  number 
of  votes  cast  at  the  last  general  election.  If  the  amount 
involved  exceeded  twenty-five  thousand  dollars  it  must 
be  ratified  at  an  election. 

Inasmuch  as  the  entrymen  on  public  lands  can  not 
have  their  lands  legally  included  in  the  district  the 
board  of  directors  is  authorized  to  enter  into  a  contract 
with  the  occupiers  of  such  lands  to  sell  them  water  on 
the  same  terms  as  to  members  of  the  district.  If,  how- 
ever, such  contracts  are  against  the  wishes  of  the  land 
owners  of  the  district  they  may  veto  them  within  thirty 
days  of  their  execution  by  a  written  protest  of  a  major- 
ity of  the  landowners. 

If  the  district  has  a  surplus  of  water,  it  may  lease  or 
rent  the  use  of  the  water  to  occupants  of  other  land 
either  within  or  without  the  district.  The  users  of 


IRRIGATION  DISTRICTS  129 

such  water  do  not  secure  any  vested  right  to  it.  The 
rental  must  not  be  less  than  one  and  one-half  times  the 
amount  of  the  district  tax  which  would  be  levied  on  the 
land  if  it  were  included  in  the  district.  It  is  also  per- 
missible for  the  owner  of  land  and  water  in  the  district, 
with  the  consent  of  the  board,  to  assign  the  use  of  part 
or  all  of  his  water  to  another  for  one  year. 

It  is  in  the  interest  of  the  public  welfare  that  private 
companies  be  permitted  and  encouraged  to  build  res- 
ervoirs, dams,  and  canals,  and  appropriate  water  to  be 
sold  for  irrigating  purposes  to  land  owners.  If  such 
companies  were  not  permitted  to  operate,  much  of  the 
land  would  remain  undeveloped.  In  practically  all 
the  arid  States  such  corporations  are  encouraged  but  are 
being  more  and  more  closely  supervised  by  the  States. 
But  why  should  an  irrigation  district  corporation  be  al- 
lowed to  appropriate  public  water  and  to  sell  or  rent  the 
same  for  short  terms  where  the  purchaser  or  renter  ac- 
quires no  permanent  interest  but  has  his  agricultural  de- 
velopment menaced  by  this  uncertainty  ?  From  year  to 
year  these  renters  are  subject  to  the  caprice  and  altered 
circumstances  of  an  uninterested  corporation.  It  is  a 
safe  proposition  to  say  that  a  company  should  not  be  al- 
lowed under  any  circumstances  to  appropriate  water  and 
hold  it  free  for  rental  on  short  periods  of  time  contracts. 
Such  a  policy  is  injurious  to  the  development  of  agri- 
culture and  consequently  to  state  and  national  welfare. 
For  a  man  would  not  consider  building  a  home  or  re- 
claiming arid  land  by  cultivation  if  the  use  of  the 
water  which  is  essential  to  success  is  so  uncertain.  If 
an  irrigation  district  has  a  surplus  of  water  users  should 


130     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

be  allowed  to  permanently  appropriate  it  at  a  reason- 
able purchase  price,  if  there  are  no  lands  in  the  dis- 
trict that  can  use  it. 

The  law  provides  that  for  the  purpose  of  constructing 
or  purchasing  reservoir  sites,  reservoirs,  water  rights, 
canals,  etc.,  that  any  district  may  issue  bonds.  The 
directors  must  first  form  an  estimate  of  the  amount  of 
money  necessary  to  enlarge  or  construct  the  system 
which  must  be  submitted  to  the  owners  of  agricultural 
lands  of  the  district  for  consideration.  Immediately 
thereafter  an  election  must  be  called  by  giving  twenty 
days'  notice  by  notices  posted  in  three  public  places  and 
by  publication  in  a  newspaper  having  general  circula- 
tion in  the  county  for  at  least  three  successive  weeks. 
If  a  two-third  majority  of  the  owners  of  agricultural 
lands  are  in  favor  of  the  bonds  the  board  of  directors 
are  authorized  to  issue  the  bonds.  The  law  provides 
specifically  how  the  bonds  are  to  be  paid  so  that  there 
can  be  no  misunderstanding  between  the  district  and 
the  purchaser.  Twenty  years  is  the  maximum  period 
fixed  for  payment.  The  term  may,  however,  be  shorter 
if  the  land  owners  so  fix  it  at  the  time  when  the  bonds 
are  issued.  The  provisions  covering  payments  provide 
that  at  the  expiration  of  eleven  years  the  landowners 
must  begin  the  payment  of  the  principal.  Beginning 
with  a  payment  of  five  per  cent,  of  the  total  amount  of 
the  bonds,  at  the  end  of  the  eleventh  year,  the  payments 
increase  one  per  cent,  each  year  on  the  original  amount 
until  the  bonds  are  paid. 

The  bonds  must  be  sold  at  public  sale  after  proper 
notice  in  a  daily  newspaper  of  Salt  Lake  City,  but  under 
no  circumstances  can  they  be  sold  for  less  than  95  cents 


IRRIGATION  DISTRICTS  131 

on  the  dollar.  The  bonds  when  issued  become  a  lien 
upon  the  agricultural  lands  of  the  district.  It  is  the 
duty  of  the  Board  of  County  Commissioners  to  levy 
each  year  a  tax  upon  the  district  sufficient  to  pay  the 
interest  and  principal  as  they  become  due,  and  in  addi- 
tion to  levy  toll  charges  sufficient  to  meet  the  mainte- 
nance and  operating  expenses  of  each  year.  For  the  pur- 
poses of  this  tax  all  the  land  in  the  district  is  assessed  by 
the  County  Assessor  at  the  same  rate  per  acre.  These 
taxes  are  collected  by  the  County  Treasurer  the  same 
as  county  and  state  taxes.  The  County  Treasurer  who 
is  also  the  district  treasurer  is  obliged  by  law  to  pay  the 
interest  and  principal  when  due.  Such  payments  are 
not  subject  to  approval  of  the  board  as  all  other  expen- 
ditures are.  A  failure  to  pay  these  taxes  subjects  the 
delinquents  to  the  same  penalties  as  apply  to  delinquents 
in  county  and  state  taxes. 

An  important  provision  of  the  act  is  section  51, 
wherein  it  provides  that  before  any  bonds  are  issued  the 
board  of  directors  of  the  district  shall  petition  the  dis- 
trict court  to  pass  upon  the  legality  of  the  proceedings 
involved  in  their  issuance.  Sufficient  public  notice  is 
given  and  a  day  fixed  when  the  court  will  examine  all 
the  papers  and  hear  any  evidence  presented  as  to  the 
legality  of  actions  taken  in  connection  with  the  issuance 
of  the  bonds.  After  all  the  facts  are  before  the  court 
the  proceedings  are  confirmed  in  part  or  in  whole  or  dis- 
approved. If  the  money  received  from  the  first  sale 
of  bonds  is  not  sufficient  to  complete  the  irrigation 
system  others  may  be  issued  by  going  through  the  same 
procedure.  The  law  does  not  fix  a  limit  to  the  amount 
of  bonds  that  can  be  issued  but  leaves  it  to  the  pur- 


132      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

chaser  to  look  out  for  his  own  interest.  It  does,  how- 
ever, provide  that  in  case  the  funds  received  from  the 
sale  of  honds  are  not  sufficient  to  complete  the  system 
that  taxes  may  he  levied  upon  the  lands.  If  this  were 
not  possible  the  whole  expenditure  might  be  a  loss. 
For  water  two-thirds  of  the  way  to  the  land  is  no  more 
valuable  for  crop  production  than  when  flowing  in  the 
natural  channel. 

The  act  of  1917  was  passed  in  response  to  the  request 
of  the  Reclamation  Service  of  the  Department  of  the 
Interior  to  make  it  possible  for  the  settlers  on  the  United 
States  Reclamation  Projects  within  the  State  to  organ- 
ize themselves  into  irrigation  districts  and  assume  con- 
trol over  and  financial  responsibility  for  the  project. 
The  changes  in  the  new  law  are  chiefly  for  the  pur- 
pose of  making  it  conform  to  the  requirements  of  the 
United  States  Reclamation  Service.  An  explanation 
of  these  requirements  will  be  set  forth  in  Chapter  XIV. 
In  the  main  the  law  of  1917  follows  the  law  of  1909  and 
its  later  amendments.  The  points  of  difference  will  be 
considered  here. 

The  Governor,  on  the  recommendation  of  the  State 
Engineer  or  of  fifty  or  a  majority  of  the  owners  of  land 
requiring  water,  may  petition  the  Board  of  County 
Commissioners  for  the  organization  of  a  district.  In 
previous  acts  it  required  a  majority  of  the  owners  of 
land  to  sign  a  petition,  and  if  fifty  is  more  than  a  major- 
ity, a  majority  is  all  that  is  required.  The  petition 
must  request  the  Board  of  County  Commissioners  to 
form  a  district  and  to  survey  the  lands  to  be  included 
and  allot  the  waters.  When  the  petition  is  filed  with 
the  County  Commissioners  a  copy  is  sent  to  the  State 


IRRIGATION  DISTRICTS  133 

Engineer  whose  duty  it  now  is  to  make  a  survey  of  the 
lands  to  be  included  and  to  allot  to  the  lands  the  water 
or  additional  waters  necessary.  When  the  work  is 
completed,  the  Board  of  County  Commissioners  gives 
notice  of  a  public  hearing  to  determine  the  exact  lands 
to  be  included.  The  Board  has  authority  to  exclude 
all  lands  which  will  not  be  benefited  by  the  system. 

When  the  detail  work  is  completed  and  filed  in  the 
office  of  the  Boerd  an  election,  after  proper  notice,  is 
held  by  the  landowners  to  determine  whether  they  de- 
sire to  form  a  district.  By  the  act  of  1909  the  voting 
unit  was  an  acre  of  land  and  a  land  owner  was  entitled 
to  one  vote  for  each  acre;  by  the  law  of  1917  the  acre- 
foot  of  water  is  the  voting  unit  and  a  landowner  is 
entitled  to  a  vote  for  each  acre-foot  of  water  or  fraction 
thereof  used.  A  majority  in  either  case  is  required 
to  form  a  district.  This  change  in  the  unit  of  voting 
is  due  to  the  fact  that  areas  of  land  under  reclamation 
projects  are  partially  supplied  with  water  and  under 
such  conditions  the  acre  would  not  be  a  just  unit,  be- 
cause it  would  give  the  user  of  six  or  twelve  inches  of 
water  as  much  weight  as  the  user  of  thirty-six  inches. 
In  earlier  irrigation  districts  the  acre  served  very  well 
because  ordinarily  the  district  included  only  lands  en- 
tirely to  be  supplied  with  water. 

Provisions  are  also  made  for  bonding  the  district. 
The  bonds  issued  may  be  used  for  the  payment  of  the 
obligations  to  the  United  States  Government.  It  is  in- 
comprehensible, however,  how  a  law  passed  supposedly 
for  the  benefit  of  the  citizens  of  a  State  should  permit 
the  bonds  to  be  turned  over  to  the  United  States  Govern- 
ment at  95  cents  on  the  dollar  when  it  is  considered 


134     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

that  they  may  bear  interest  and  that  they  are  a  collective 
district  obligation  as  compared  with  the  present  indi- 
vidual non-interest  bearing  obligation. 

In  the  establishment  of  a  reclamation  project,  the 
water  becomes  a  lien  on  the  public  land.  As  the  Gov- 
ernment holds  title  to  much  of  the  land  it  can  compel 
payment  of  the  water  dues  before  title  issues  or  if  title 
issues  make  it  a  lien  on  the  land.  A  state  corporation 
could  not  do  that  so  section  12  provides  that  a  district 
may  enter  into  contracts  with  the  occupiers  of  public 
lands  upon  the  same  terms  as  the  owners  of  lands  and 
that  they  shall  have  the  same  rights.  The  length  of 
the  payments  of  the  bonds  is  extended  from  twenty 
years  to  forty  years. 

As  the  voting  is  done  according  to  the  acre-foot,  nat- 
urally it  follows  that  all  assessments  and  levies  are  made 
on  the  same  basis.  Moreover  the  district  may  be  di- 
vided into  units  and  a  different  assessment  may  be  made 
in  the  several  units.  As  already  indicated  where  the 
acreage  was  partially  supplied  with  water  an  adjust- 
ment in  voting  power  was  made.  The  act  likewise  pro- 
vides that  proper  financial  adjustments  shall  be  made 
for  the  ditches,  canals,  and  reservoirs,  already  in  ex- 
istence. When  a  proper  understanding  has  been 
reached  between  the  board  of  directors  and  the  old 
irrigators  it  shall  be  approved  or  modified  and  approved 
by  the  district  court. 

The  foregoing  are  the  chief  changes  included  in  the 
new  act  especially  passed  to  enable  the  landowners 
under  a  reclamation  project  to  organize  a  district  and 
make  a  contract  with  the  United  States  Government. 
In  order  to  do  this,  they  must  substitute  a  joint  obliga- 


IRRIGATION  DISTRICTS  135 

tion  in  place  of  the  individual  obligation.  Under  this 
plan,  landowners  become  jointly  liable  until  the  entire 
obligation  is  paid.  Under  the  Water  Users'  Association 
each  landowner  is  individually  liable  for  his  own  pay- 
ment. But  under  the  Water  Users'  Association  plan 
the  system  remains  under  the  control  of  the  Reclamation 
Service  until  a  certain  percentage  of  the  payments  are 
made.  In  general  this  system  of  management  has  been 
so  extravagant  in  its  expenses  of  maintenance  and  man- 
agement and  so  unsympathetic  to  the  needs  and  wishes 
of  the  farmers  that  they  are  willing  to  submit  to  almost 
any  terms  to  get  into  a  system  where  they  will  have  the 
management  of  their  own  affairs. 

As  a  rule,  the  system  of  irrigation  districts  has  not 
proved  successful  no  matter  in  what  States  they  have 
been  organized.  In  a  very  large  percentage  the  pur- 
chasers of  the  bonds  have  been  very  heavy  losers.  In 
some  instances  the  bond  holders  have  suffered  a  total 
loss.  Utah  suffered  little  loss  because  wisely,  when 
little  was  known  of  irrigation,  the  districts  did  not  poss- 
ess the  right  of  bonding.  When  men  are  spending  their 
own  money  or  labor  they  are  apt  to  be  more  conserva- 
tive with  the  result  that  careful  investigation  is  made  as 
to  the  quality  of  land  and  quality  and  sufficiency  of  the 
water  supply  before  the  enterprises  are  undertaken. 

The  writer  maintains  that  the  irrigation  district  law, 
devoid  of  state  supervision  as  to  the  sale  of  bonds  and 
the  expenditure  of  funds,  is  fundamentally  wrong. 
There  is  little  care  taken  to  safeguard  the  interests  of 
the  investor.  Usually  a  legal  process  is  provided 
whereby  a  district  could  be  organized  and  that  is  about 
the  extent  of  the  state's  control.  In  the  majority  of 


136     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

cases  the  bringing  of  water  at  the  best  is  a  highly  specu- 
lative undertaking.  When  we  add  to  this  the  adver- 
tising of  the  new  undertaking  in  pamphlets,  in  a  highly 
exaggerated  form,  it  is  not  surprising  that  many  in- 
vestors have  been  deceived.  In  fact,  when  some  sort  of 
approval  has  been  required  by  law  from  the  State  En- 
gineer, it  has  been  made  to  appear  that  the  whole  un- 
dertaking is  subject  to  state  supervision.  It  would 
appear  that  the  least  the  State  could  do  in  the  formation 
of  an  irrigation  district  is  to  measure  and  determine 
whether  there  is  a  sufficient  supply  of  water  of  the  proper 
purity;  to  measure  the  land  and  analyze  the  soil  and 
pass  upon  it  as  to  quantity  and  quality  so  that  districts 
will  not  be  undertaken  with  too  small  units  or  with  un- 
suitable soil ;  to  examine  and  pass  upon  the  plans  of  the 
system  and  the  estimate  of  costs,  so  that  projects  will 
not  be  undertaken  that  are  financially  impossible  of 
completion  or  if  completed  will  be  unprofitable.  The 
State  should  supervise  the  expenditures  of  the  funds  so 
that  the  purchasers  of  bonds  would  be  assured  that  their 
moneys  are  legitimately  spent  for  construction  purposes 
and  not  largely  to  buy  out  the  interests  of  promoters. 
Finally  the  State  should  assure  itself  that  good  drainage 
is  supplied.  Sufficient  drainage  should  be  a  prereq- 
uisite required  by  the  State  in  the  undertaking  of  any 
irrigation  project. 

With  the  foregoing  restrictions  thrown  about  irriga- 
tion districts  the  risks  would  be  considerably  reduced. 
The  Utah  law  does  not  supply  any  of  the  above  restric- 
tions and  in  general  is  as  faulty  as  any  of  the  laws  of 
the  Western  States.  Until  some  such  restrictions  are 
provided,  about  the  only  safe  irrigation  bonds  in  this  or 


IRRIGATION  DISTRICTS  137 

any  other  State  are  those  of  districts  where  the  systems 
are  already  completed  so  that  the  cost  and  the  efficiency 
of  the  system  is  known  and  the  adequacy  of  the  water 
supply  is  determined  from  usage  as  is  also  the  quality 
of  the  soil  for  the  production  of  crops. 

NAME  OF  IRRIGATION  DISTRICT  BONDS    DISPOSAL  OF  BONDS 

Blue  Bench  No.  1    $155,000  Issued 

Green   River $350,000  District  bankrupt 

Mapleton     $171,000  Issued  to  U.  S.  Gov. 

New  Hope    

Springville $114,000  Issued  to  U.  S.  Gov. 

Upper  Blue  Bench  $250,000  Voted  but  not  issued 

West  Bench    $100,000  Voted  but  not  issued 

West  Cache  $192,000  Issued 


CHAPTEK  VIII 

COUNTY  WATER  COMMISSIONERS 

In  1880,  the  law  of  1852  giving  the  County  Court, 
consisting  of  the  Probate  Judge  and  the  three  county 
selectmen,  control  over  the  waters  of  the  territory  was 
repealed.  The  authority  over  the  waters  of  the  county, 
now  considerably  modified,  passed  into  the  hands  of 
selectmen  who  became  ex-officio  the  water  commissioners 
of  the  county.  Under  the  old  law  the  commonwealth 
was  a  party  to  every  water  claim  or  controversy.  It 
was  part  of  the.  duty  of  the  county  courts  to  see  that 
a  proper  apportionment  of  the  water  was  made  to  each 
water  claimant,  so  that  the  territory  was  insured  a  ben- 
eficial and  economic  use  of  its  water  supply.  The 
officials  of  the  several  county  courts  had  exercised  this 
authority  to  the  extent  that  the  amount  asked  or  appro- 
priated, where  it  was  excessive,  was  reduced  or  denied 
entirely  where  it  was  deemed  against  the  best  interest 
of  public  policy.  The  new  law,  however,  was  based  on 
a  different  theory  and  a  different  policy  was  in- 
augurated. 

Under  the  new  law  it  was  no  longer  the  duty  of  the 
territory  to  enforce  a  beneficial  and  economical  use  of 
the  public  waters  but  merely  to  supply  a  means  of  adju- 
dicating the  difficulties  which  may  arise  between  dif- 
ferent appropriators  and  not  concern  itself  as  to  whether 

138 


COUNTY  WATER  COMMISSIONERS  139 

the  claims  were  excessive  or  not  as  long  as  each  claimant 
was  adequately  protected.  In  issuing  certificates  to 
users  of  water,  the  water  commissioners  were  inclined 
to  grant  the  full  request  so  long  as  no  one  protested. 
This  policy  resulted  in  grants  so  large  as  to  be  absurdly 
excessive.  These  large  grants  in  many  instances  are  in 
existence  to-day  and  are  very  troublesome.  The  Weber 
County  Commissioners  granted  in  one  case  49  second 
feet  for  two  hundred  acres  where  three  would  have  been 
ample.  It  would  be  useless  to  cite  a  large  number  of 
such  cases  because  they  were  not  the  fault  of  the  water 
commissioners,  but  of  the  law  which  was  theoretically 
and  fundamentally  wrong.  It  is  doubtful,  if  in  all  the 
legislative  history  of  irrigation  a  more  retrograde  piece 
of  legislation  was  ever  placed  upon  the  statute  books 
than  the  law  of  1880.  It  was  doubly  harmful  since 
the  work  of  the  county  courts  had  laid  such  an  excellent 
foundation  for  the  next  logical  step,  territorial  control. 
The  chief  defect  of  the  county  courts  had  not  been  the 
principle  upon  which  they  were  acting  but  the  limit 
of  their  jurisdiction,  circumscribed  as-  it  was  by  the 
county  boundaries.  However,  in  the  early  days  when 
the  counties  were  large  and  the  irrigation  systems  in  gen- 
eral not  as  extensive  as  they  were  to  become  later  this 
limitation  was  not  felt  so  much.  If,  instead  of  repeal- 
ing this  system  it  had  been  made  state  wide  in  order  to 
meet  the  new  conditions  about  to  develop  it  would  have 
been  of  incalculable  value. 

Section  1  of  the  Act  of  1880  made  the  county  select- 
men ex-officio  water  commissioners  of  the  county  and 
defined  their  duties  as  follows :  "  to  make  or  to  cause 
to  be  made  and  recorded  such  observations  from  time  to 


140      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

time  as  they  may  deem  necessary  of  the  quantity  and 
flow  of  water  in  the  natural  sources  of  supply,  and  to 
determine  as  near  as  may  be  the  average  flow  thereof 
at  any  season  of  the  year,  and  to  receive,  hear,  and  de- 
termine all  claims  to  any  right  to  the  use  of  water,  and 
on  receipt  of  satisfactory  proof  of  any  right  to  the  use 
of  water  having  vested,  to  issue  to  the  person  owning 
such  right  a  certificate  thereof,  and  to  generally  oversee 
in  person  or  hy  agents  appointed  by  them,  the  distribu- 
tion of  water  within  their  respective  counties  from  nat- 
ural sources  of  supply,  and  to  fairly  distribute  according 
to  the  nature  and  extent  of  recorded  rights  and  according 
to  law,  to  each  said  corporation  or  persons  their  several 
portions  of  such  water;  and  in  case  of  dispute  between 
any  of  such  persons  or  corporations  as  to  the  nature  or 
extent  of  their  rights  to  the  use  of  water,  or  right  of 
way,  or  damages  therefor,  of  any  one  or  more  of  such 
persons,  or  corporations,  to  hear  and  decide  upon  all  such 
disputed  rights  and  file  a  copy  of  their  findings  and  de- 
cisions as  to  such  rights  with  the  County  Eecorder,  and 
to  distribute  the  water  according  to  such  findings  or  de- 
cision, unless  otherwise  ordered  by  a  court  of  competent 
jurisdiction." 

By  this  section,  the  water  commission  was  authorized 
to  measure  the  streams  in  their  respective  counties  and 
record  their  flow.  If  this  part  of  the  act  had  been  car- 
ried into  effect  it  would  have  been  of  great  value  in  the 
way  of  gathering  information  for  future  adjudication 
but  very  little  along  this  line  was  done.  It  would  be  dif- 
ficult to  over  estimate  the  value  of  such  a  fund  of  infor- 
mation, extending  over  a  period  of  fifteen  or  twenty 
years.  But  the  counties  were  poor,  engineers  were  not 


COUNTY  WATER  COMMISSIONERS  141 

available,  the  demands  for  water  in  most  counties  were 
not  pressing  and  above  all  the  county  selectmen  as  a 
rule,  did  not  appreciate  the  coming  value  of  such  infor- 
mation. The  unfortunate  feature  of  this  law  was  that 
the  territory  had  no  authority  to  intervene  in  a  dispute 
to  protect  the  public  interests  against  excessive  appro- 
priation, a  right  the  law  of  1852  especially  provided  for. 

In  Section  V,  suits  at  law  were  provided  for  but  not 
until  after  an  examination  and  adjudication  of  the  rights 
of  the  respective  claimants  by  the  water  commissioners 
of  the  county.  If,  after  the  adjudication  by  the  com- 
mission the  parties  to  the  controversy  were  not  satisfied 
then  they  possessed  the  right  to  litigate  the  matter  be- 
fore the  District  Court.  The  water  commissioners  had 
the  right  upon  their  own  initiative  to  adjudicate  any 
stream  within  the  county  and  to  divide  the  spring  or  the 
stream  among  the  lawful  users.  When  the  respective 
rights  upon  the  streams  were  determined  the  commis- 
sioners made  it  a  policy,  according  to  the  law,  to  issue 
water  certificates  which  could  be  recorded  in  the  office 
of  the  County  Recorder.  An  appeal  from  the  decision 
of  the  commission  lay  to  a  district  court  but  it  had  to 
be  made  within  a  given  time.  On  the  contrary  if  the 
water  commissioners  failed  to  act  upon  the  case  for 
three  months  the  case  could  be  taken  directly  to  the 
Dictrict  Court.  In  several  of  the  counties  a  large  num- 
ber of  streams  were  adjudicated  and  passed  upon  and 
certificates  issued  and  recorded.  These  adjudications 
in  the  most  instances  have  stood  until  the  present  and  in 
many  cases  undoubtedly  will  remain  for  many  years  to 
come. 

An  unhappy  feature  in  many  ways  was  the  provision 


142      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

which  established  a  vested  right  in  the  use  of  water. 
It  reads  as  follows:  "  A  right  to  the  use  of  water  for 
any  useful  purpose  such  as  for  domestic  purposes,  irri- 
gating lands,  propelling  machinery,  washing  and  sluic- 
ing areas  and  other  like  purposes  is  hereby  recognized 
and  acknowledged  to  have  vested  and  accrued  as  a 
primary  right,  to  the  extent  of,  and  reasonable  neces- 
sity for  such  use  thereof."  This  right  was  dependent 
upon  the  diversion  of  unappropriated  water  and  upon  the 
open,  peaceable  and  uninterrupted  and  continuous  use 
of  the  water  for  the  period  of  seven  years.  These  rights 
were  designated  as  primary.  The  same  act  defined  and 
established  another  class  of  rights  known  as  secondary 
water  rights  which  are  as  follows :  "  Whenever  the  whole 
of  the  waters  of  any  natural  stream  or  water  course 
of  supply  has  been  taken,  diverted  and  used  by  prior 
appropriators  for  a  part  or  parts  of  each  year  only: 
and  other  persons  have  subsequently  appropriated  any 
part  of  the  whole  of  such  water  during  any 
other  part  of  such  year  such  person  shall  be  deemed 
to  have  acquired  a  secondary  right  or  in  times  of  unusual 
increase  in  the  flow  of  a  stream  exceeding  the  average 
flow  for  seven  years,  at  the  same  season  of  the  year  the 
appropriators  and  users  of  this  increased  water  flow 
shall  have  established  a  secondary  water  right." 

If  a  system  of  measuring  the  streams  had  been  estab- 
lished and  carried  on  for  a  number  of  years  it  would 
have  been  possible  to  determine  whether  there  were  a 
possibility  of  secondary  water  rights  upon  the  stream 
measured.  Such  a  policy  of  water  measurements  was 
not  pursued  by  the  water  commission  and  the  secondary 
water  rights  established  were  in  the  nature  of  what  was 


COUNTY  WATER  COMMISSIONERS  143 

commonly  called  "  waste  water,"  but  was  not  waste  water 
but  was  in  reality  nothing  more  nor  less  than  excess 
appropriation  by  primary  users  from  the  natural  streams 
which  had  been  allowed  to  run  to  waste.  The  users  who 
possessed  land  situated  below  the  farmer  who  made  the 
excessive  diversion  called  it  waste  water  and  appropri- 
ated it  to  beneficial  use.  Many  appropriations  of  this 
so  called  "  waste  water  "  have  eventually  ripened  into 
primary  rights  when  as  the  years  went  by,  the  farmer 
making  the  original  diversion,  became  satisfied  that  he 
did  not  need  it  at  all. 

A  great  difficulty  in  determining  when  secondary 
rights  arose  was  the  fact  that  the  right  to  the  use  of 
the  waters  of  a  given  stream  was  stated  in  fractional 
parts  of  the  flow.  In  other  words  a  user  of  a  canal 
may  be  entitled  to  one-twentieth  or  one-fiftieth  of  a 
stream  no  matter  as  to  the  size  of  it.  So  if  there  was 
an  actual  increase  in  the  stream  the  person  or  canal 
could  appropriate  the  given  per  cent,  of  the  stream, 
and  it  would  not  be  waste  water,  until  the  users  failed 
to  apply  the  water  to  beneficial  purposes.  Until  then 
the  increased  flow  would  not  be  discovered  by  persons 
desiring  additional  water.  Of  course,  other  methods 
of  measurement  were  legal  but  owing  to  lack  of  famil- 
iarity with  them  they  were  rarely  used.  On  the  other 
hand  the  system  of  dividing  the  stream  in  fractions  of 
the  stream  itself  had  a  certain  advantage.  In  case  there 
was  a  decrease  in  the  flow  of  the  stream  in  late  summer 
every  user  received  a  proportionate  amount  thereby 
enabling  him  to  save  his  crops  in  part  at  least.  When 
priority  is  fully  established  and  each  user  allotted  his 
water  in  so  many  second  feet,  the  earlier  appropriators 


14:4      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

may  have  plenty  and  the  later  ones  none.  Such  was 
contrary  to  the  spirit  of  the  settlement  of  Utah  where 
a  religious  organization  had  come  to  establish  itself  and 
could  only,  from  the  very  nature  of  physical  conditions, 
succeed  by  cooperative  community  action,  so  it  was 
wise  indeed  that  such  a  system  was  not  introduced  for 
it  may  have  impeded  the  growth  of  the  territory.  At 
the  same  time  it  must  be  remembered  that  the  percentage 
if  held  the  same  for  the  early  spring  flow  may  prevent 
the  storage  of  the  early  spring  waters, 

From  the  earliest  time  there  had  been  a  limited 
amount  of  buying  and  selling  of  water  rights.  In  fact 
it  was  more  in  the  nature  of  the  buying  and  the  selling 
of  labor.  Where  hundreds  had  worked  hard  and  dug 
a  ditch  larger  than  was  necessary  to  supply  their  land 
they  often  sold  to  a  later  settler  part  of  their  interest 
in  the  canal.  The  canal  was  in  many  instances  dug 
large  enough  to  supply  new  comers.  Frequently  the 
payment  was  made  in  labor  itself.  In  few,  if  any 
parts  of  the  territory,  had  the  use  of  water  reached  the 
monopoly  stage,  so  it  can  be  truthfully  said  that  in  the 
early  settlement  of  the  territory,  that  what  was  known 
by  the  term  water  sale  was  no  more  than  a  sale  of  part 
of  the  work  done  on  a  canal.  By  1880  in  certain  parts 
of  the  territory  water  was  growing  scarce  and  what  be- 
gan as  an  innocent  practice  by  early  settlers  in  the  sale 
of  the  part  of  their  interest  in  the  canal  easily  passed 
over  into  the  sale  of  water.  From  the  sale  of  the  actual 
labor  done  on  the  canal  to  a  sale  of  part  of  the  interest 
created  by  labor  in  the  canal  was  a  short  step  and  to  it 
could  readily  be  added  an  additional  amount  for  the 
monopoly  value  of  the  water.  Unfortunately,  water 


COUNTY  WATER  COMMISSIONERS  145 

was  not  made  appurtenant  to  the  land  but  could  be  held 
legally  as  personal  property.  The  law  of  1880  legally 
established  the  right  of  the  user  of  water  to  declare  his 
water  rights  personal  property  and  dispose  of  it  as  such. 

Up  to  this  time  the  foundation  principle  in  the  terri- 
tory was  that  the  water  was  appurtenant  to  the  land  and 
it  was  most  unfortunate  that  any  other  doctrine  ever 
Deceived  legal  recognition.  In  an  arid  county  the  owners 
of  the  water  are  the  masters  of  the  land  and  the  people, 
and  when  the  water  is  held  as  personal  property  there  is 
a  grave  danger  that  by  purchase  it  may  pass  into  the 
hands  of  the  few  and  become  a  burdensome  monopoly 
upon  agricultural  activity. 

The  act  of  1880  still  further  provided  that  water 
companies  could  organize  and  conduct  their  business 
upon  the  corporation  plan.  Soon  after  the  law  became 
effective  many  canals  were  organized  as  companies  and 
collected  the  operation  and  maintenance  expenses  by 
an  annual  assessment  upon  the  shares  of  the  canal. 
This  has  now  become  the  common  method  of  conducting 
the  affairs  of  irrigation  companies  in  the  State.  There 
are  still,  however,  hundreds  of  small  canals  without  any 
formal  organization  at  all.  The  users  of  water  from 
these  canals  simply  meet  annually  and  agree  upon  an 
assessment  for  the  repair,  maintenance  and  operation  of 
the  canal  for  the  year  and  ordinarily  pay  the  major  part 
in  labor.  A  small  money  levy  is  made  to  provide 
material  for  headgates,  flumes,  and  to  pay  the  water- 
master.  For  the  larger  canals  the  corporation  plan  has 
proven  itself  the  most  satisfactory  of  any  organization 
so  far  employed. 

Shortly  after  the  passage  of  the  law  of  1880,  the 


146     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

water  commissioners  throughout  the  several  counties 
became  active  in  the  adjudication  of  individual  water 
rights  where  there  were  any  controversies  and  also  in 
the  distribution  of  streams.  A  majority  of  the  work 
done  was  of  an  enduring  nature  and  it  is  in  many  in- 
stances the  present  basis  of  distribution.  Hundreds  of 
streams  and  springs  were  rudely  measured  or  judged  as 
to  their  flow  and  the  water  assigned  to  the  respective 
users.  It  is  only  in  exceptional  cases  that  the  distribu- 
tion made  has  been  questioned  since.  Where  the  courts 
have  been  called  upon  to  re-adjudicate  the  old  water 
rights,  they  have,  in  the  main  followed  the  old  settle- 
ment. 

Inasmuch  as  the  work  accomplished  was  so  extensive 
and  permanent,  a  study  of  the  methods  pursued  will  be 
of  wide  interest. 

Acting  in  some  ways  like  a  court,  the  water  commis- 
sioners adopted  a  body  of  rules  to  govern  in  the  pro- 
cedure of  cases  coming  before  them.  As  the  rules  for 
the  several  counties  were  very  much  the  same  those 
adopted  by  Box  Elder  County  will  be  given  in  full. 

RULES   OF   PROCEDURE 

1.  Meetings  (date  set). 

2.  All   persons,   corporations   or   associations   claiming   to 
have  primary  or  secondary  rights  to  any  streams  or  water  in 
Box  Elder  may  file  their  claims  with  the  Clerk  of  the  County 
Court  of  said  county  who  is  also  the  clerk  of  the  Board  of 
Water    Commissioners.     At    any   time   hereafter    and   upon 
the  establishment  of  the  same  will  be  granted  a  certificate 
therefor. 

3.  The  board  shall  appoint  the  time  and  place  for  hearing 
each   claim   and   thereupon   the   clerk   shall   issue   a   notice 
stating  the  name  of  applicant  or  claimant  and  giving  in  gen- 
eral terms  a  description  of  the  water  right  claimed,  naming 


COUNTY  WATER  COMMISSIONERS  147 

the  stream  or  spring  and  designating  the  time  appointed  for 
the  hearing  of  the  claim,  copies  of  which  notice  shall  be  posted 
in  three  public  places  in  the  county  or  published  in  some 
newspaper  as  the  board  may  direct  at  least  ten  days  before 
the  hearing  and  in  all  cases  where  there  are  known  to  be  con- 
flicting claims  and  adverse  claimants  in  his  application  who 
shall  each  be  served  with  a  copy  of  such  notice  in  the  manner 
prescribed  in  Section  1719-1721  of  the  compiled  laws  of  Utah 
Territory  all  of  which  shall  be  at  the  expense  of  the 
claimants  but  adverse  claimants  shall  be  liable  at  the  dis- 
cretion of  the  board  for  the  cost  of  the  unsuccessful  litigation 
caused  by  them. 

4.  All  adverse  claimants  shall  specify  in  writing  the  nature 
and  extent  of  their  respective  adverse  claims,  when  and  how 
they  originated,  etc.;  and  if  the  first  claim  be  verified  by 
the  oath  of  the  party,  his  agent  or  attorney,  then  the  above 
party  shall  likewise  verify  his  claims  and  the  parties  shall 
be  held  to  the  issues  made  and  restricted  in  their  proofs 
to  them. 

5.  Any  person  desiring  the  attendance  of  witnesses  shall 
be  entitled  to  obtain  from  the  clerk  of  his  board  subpoenas 
therefor,  and  the  respective  parties  may  obtain  continuances 
for  the  proper  cause  and  proper  terms  to  be  determined  by 
the  board   and   all   applications,   notice,   proofs   of   service, 
adverse  claims,   subpoenas,  findings   and  determinations   of 
the  Board  of  Water  Commissioners  shall  become  a  part  of 
the  records  in  each  case." 

In  case  of  a  contest,  hearings  were  had,  both  sides  be- 
ing represented,  but  rarely  by  counsel.  As  a  rule  the 
commission  aimed  to  avoid  such  expenses.  If  it  was 
deemed  advisable  the  commissioners  visited  the  stream 
and  the  lands  to  be  irrigated,  aiming  thereby  to  come  to 
a  fair  and  just  conclusion. 

Before  any  claim  or  contest  was  taken  up,  notice  was 
published  in  a  newspaper  having  general  circulation  in 
the  county,  the  following  being  an  example : 


148     DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

NOTICE. 

To  Whom  it  May  Concern: 

Be  it  known  unto  all  whom  it  may  concern  that,  I,  Frank 
Ilyland,  have  this  day  filed  my  claim  for  a  water  right  of  the 
water  of  Birch  Creek  running  into  Muddy,  and  is  situated 
about  fourteen  miles  northwest  of  Terrace,  and  about  six 
miles  north  of  what  is  known  as  Plains  Ranch,  also  for  the 
water  in  Spring  Creek  near  the  same  place  and  empties  into 

the  creek  called  Muddy. 

FRANK  HYLAND. 

Brigham  City,  Utah. 
Sept.  26,  1883. 

If  after  the  publication  of  the  notice  for  ten  days  or 
more  there  were  no  remonstrance,  the  petition  was 
granted  as  approved.  Here  was  the  weakest  part  of 
the  act.  In  the  authority  granted  to  the  County  Court 
by  the  Act  of  1852  the  public  was  represented  and  the 
court  made  grants  of  water  as  would  best  "  subserve  the 
interest  of  the  settlement  in  the  distribution  of  water 
for  irrigation  or  other  purposes."  Under  the  system 
inaugurated  in  1880  excessive  grants  were  made  if  it 
did  not  at  the  time  interfere  with  the  rights  of  other 
claimants. 

At  the  conclusion  of  the  hearing,  if  there  was  one,  a 
certificate  was  issued  to  the  user  or  users  of  the  stream 
or  spring: 

CERTIFICATE   OF    WATER   RIGHT 

(Issued  by  the  Water  Commissioners  of  Weber  County.) 

The  application  or  claim  for  water  right  of  John  Doe  on 
file  herein  came  and  duly  to  be  heard  the  28th  day  of  Sep- 
tember 1880  and  due  notice  thereof  having  been  previously 
given  as  provided  by  the  rules  of  the  Board  of  Water  Com- 
missioners in  and  for  Weber  County,  Utah  Territory,  and 


COUNTY  WATER  COMMISSIONERS  149 

evidence  thereof  duly  filed,  the  said  applicant  made  proof 
to  the  satisfaction  of  said  commissioners  of  the  validity  of 
their  claim  and  right  to  the  use  of  the  water  hereinafter 
described  as  claimed  in  said  application  and  thereupon  the 
matter  was  submitted  and  taken  under  advisement  by  said 
board  and  now  being  fully  advised  in  the  premises  the  under- 
signed selectmen  and  ex-officio  water  commissioners  in  and 
for  said  Weber  County  do  find  from  the  evidence  adduced 
that  the  water  hereinafter  described  has  been  taken  and 
diverted  from  its  natural  bed  and  channel  and  it  has  been 
openly  and  peaceably  uninterruptedly  and  continuously  used 
by  said  applicant,  John  Doe,  for  irrigating  the  land  here- 
inafter described  for  a  period  of  more  than  fifteen  years 
past  and  that  he  has  a  vested  primary  right  to  the  use  of 
said  water. 

Wherefore  in  pursuance  of  the  provisions  of  the  Territory 
of  Utah,  entitled :  "  An  Act  Providing  for  Recording  Vested 
Rights  to  the  Use  of  Water  and  Regulating  their  Exercise." 
February  20,  1880,  it  is  hereby  adjudged,  determined  and 
certified  by  the  Water  Commissioners  that  John  Doe  is  en- 
titled to  a  primary  right  to  a  portion  of  the  water  of  Birch 
Creek,  a  stream  having  its  source  in  Weber  County,  Utah, 
in  common  with  all  claimants  who  take  water  from  said 
stream  to  the  extent  of  reasonable  necessity  for  irrigation 
of  the  following  described  piece  of  land,  situate,  lying  and 
being  in  Weber  County,  Utah  Territory. 

(LEGAL  DESCRIPTION  OF  LAND) 

The  right  to  use  said  water  as  aforesaid  is  hereby  recog- 
nized and  acknowledged  to  have  vested  and  accrued  as  a 
primary  right.  The  exercise  thereof  to  be  regulated  by  and 
under  supervision  of  the  agent  or  agents  duly  appointed  by 
the  provisions  of  said  Act. 

Witness  whereof  we  have  set  our  hands  at  Ogden  City, 
Weber  County,  Utah  Territory. 

RICHARD  ROE,  Clerk. 

L.  J.  HERRICK     1        Selectmen  and 

E.  A.  HAMMOND   p   Ex-Officio 

A.  G.  TAYLOR  Water  Commissioners, 


150     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  selectmen  of  Cache  County  acted  as  water  com- 
missioners from  July  13,  1880,  until  some  time  in  the 
eighteen-nineties.  It  is  difficult  to  determine  the  exact 
date.  During  that  period  they  settled  the  right  of 
use  of  almost  every  stream  and  every  spring  in  the 
county. 

Serious  contests  were  settled  involving  hundreds  of 
acres  of  lands,  some  sixty-five  contestants  and  an  irriga- 
tion district.  There  were  some  10  irrigation  districts 
in  the  county  and  their  rights  were  all  adjudicated  and 
the  flow  of  water  that  they  were  entitled  to  determined. 
As  an  example  of  the  work  done  Birch  and  Summit  or 
Smithfield  Creeks  were  investigated  and  the  waters 
divided  among  the  hundred  of  claimants.  As  already 
stated  the  right  of  the  use  of  water  whether  to  individ- 
uals or  irrigation  districts  was  settled  and  a  commend- 
able part  of  the  proceedings  was  that  it  was  relatively 
inexpensive  and,  in  the  main  has  remained  undisturbed 
to  the  present,  as  an  evidence  of  what  can  be  done  by 
the  application  of  common  sense  to  practical  problems. 
It  is  not  maintained  that  the  time  has  not  come  for  a 
revision.  It  has,  but  when  it  is  accomplished  a  very 
large  number  of  the  former  adjudicated  rights  will  be 
left  undisturbed. 

In  Salt  Lake  County,  the  water  commissioners  were 
very  active  during  1880  but  after  that  year  little  was 
done.  The  rights  of  the  users  of  water  from  Mill 
Creek  by  canals  and  by  individuals  were  determined 
and  the  priority  of  each  canal  fixed.  Streams  such  as 
!N"efFs  Canyon,  Butterfield  Creek,  Rose  Creek,  Emigra- 
tion Creek  were  adjudicated.  Parley's  Canyon  stream 


COUNTY  WATER  COMMISSIONERS  151 

alone  involved  an  adjustment  among  289  users  and  3530 
acres. 

In  Box  Elder  County  the  water  commissioners  dealt 
with  practically  every  stream  and  spring  in  the  county. 
The  irrigation  district  and  some  of  the  companies  were 
dealt  with  as  units.  The  adjudication  involved  307 
claimants  and  429  water  certificates  were  issued.  The 
commissioners,  as  the  law  allowed  water  to  be  regarded 
as  personal  property,  permitted  it  to  be  sold  but  re- 
quired that  the  transfer  be  approved  by  them  and  re- 
corded. 

The  water  commissioners  of  Davis  County  adjudi- 
cated fifteen  streams  and  one  spring.  They  issued  306 
water  certificates  and  dealt  with  633  applications. 

The  commissioners  of  Utah  County  distributed  the 
water  for  63  streams  and  springs  and  issued  certificates 
to  the  users. 

Weber  County  water  commissioners  adjudicated  sev- 
eral streams  and  springs  and  issued  198  water  cer- 
tificates. 

If  this  same  system  had  been  built  upon  by  allowing 
the  county  water  commissioners  to  employ  expert  advice, 
protect  the  public  interest,  and  to  receive  judicial  ap- 
proval for  the  work  done  it  would  have  proven  ideal. 
As  the  State  grew  in  population  and  integration,  then 
the  county  water  commissioners  could  have  been  consoli- 
dated into  one  state  commission.  The  public  doubts 
the  wisdom  of  the  past  and  looks  afar  for  some  new 
institution  when  a  slight  change  in  an  old  one  would 
meet  the  situation  better. 


CHAPTEE  IX 

THE  DISTRICT  OK  TRIAL   COURTS  AND  IRRIGATION 

The  County  Courts  and  the  County  Board  of  Select- 
men dealt  with  the  adjudication  of  water  mainly  as 
administrative  bodies.  The  questions  of  law  were  nat- 
urally passed  on,  but  then,  as  now,  in  successful  water 
distribution  the  soil  and  engineering  problems  consti- 
tute the  larger  *part  of  the  consideration.  For  these 
reasons  the  courts  and  boards,  made  up  largely  of  lay- 
men, were  very  successful.  For  the  arid  regions  in  the 
early  settlement  of  the  West,  unless  they  followed  the 
law  of  water  as  applied  to  the  humid  region,  there  were 
few  rules  of  law  or  custom  that  could  be  applied.  The 
path  was  new  and  unbeaten  and  common  sense  was  the 
only  guide.  Cases  found  their  way  to  the  civil  courts 
but  they  were  surprisingly  few  in  number  in  comparison 
with  thousands  of  distributions  made  and  hundreds  of 
disputes  settled  by  the  County  Courts  and  the  several 
Boards  of  Selectmen. 

DISTRICT    COURTS 

However,  the  repeal  of  the  laws  of  1852  and  1880  left 
the  civil  courts  as  the  only  means  by  which  water  could 
be  apportioned  or  disputes  adjusted.  Under  the  Act 
of  1852  the  rights  of  the  commonwealth  were  protected 
against  excessive  or  improper  appropriation  because 

152 


THE  DISTRICT  COURTS  AND  IRRIGATION  153 

the  waters  were  distinctly  held  to  be  the  property  of 
the  people.  The  act  of  1880  did  away  with  this  idea 
but  in  practice  the  Board  of  County  Selectmen  pursued 
this  same  idea  as  far  as  possible.  There  was  no  means 
of  enforcing  the  grants  but  new  settlers  were  accorded 
rights  in  community  canals  and  public  streams  that 
could  not  have  been  obtained  in  an  ordinary  court  of 
law.  A  thorough  consideration  of  the  principles 
evolved  by  the  county  courts  convinces  the  careful  inves- 
tigator that  they  were  highly  beneficial  to  agricultural 
and  communal  welfare. 

As  a  means  of  comparing  the  work  of  the  district 
courts  with  the  county  courts,  already  considered  in 
Chapter  V,  a  few  cases  adjudicated  by  the  district  courts 
will  be  briefly  considered.  Since  1890  and  especially 
since  1896  the  water  cases  tried  before  the  district  courts, 
particularly  in  the  Sevier  River  Drainage  District,  have 
been  very  numerous.  It  would  be  profitless  to  consider 
many  for  they  do  not  involve  fundamentally  different 
principles. 

In  the  case  of  Ebenezer  Gr.  De  Friez  et  al  v.  Ashley 
Central  Irrigation  Co.  et  al,  1897,  the  court  in  dividing 
the  water  followed  the  old  custom  of  granting  each  user 
a  percentage  of  the  flow  of  the  stream,  and  to  have  the 
same  flow  uninterruptedly  into  and  through  its  canals, 
and  in  fractional  parts  of  the  stream.  As  has  already 
been  observed  the  awarding  of  water  rights  in  fractional 
parts  of  the  stream  was  an  early  development.  It  had 
certain  advantages  when  measurements  were  inaccurate 
and  could  be  readjusted  at  the  pleasure  of  the  county 
courts.  Here  the  same  system  was  employed  where  the 
rights  became  vested,  and  could  not  be  readily  changed, 


154     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

a  policy  which  required  a  more  accurate  system  of  meas- 
urement. Moreover  the  court  in  this  case  decreed  that 
the  "  appropriator  shall  have  the  same  flow  uninter- 
ruptedly into  and  through  his  canal."  In  irrigation, 
the  phrase,  an  "  uninterrupted  flow  "  is  wholly  unde- 
sirable, if  it  means  what  it  says,  because  it  tends  to 
water-log  the  land.  Besides  it  would  tend  to  interfere 
with  the  storage  of  early  waters  in  reservoirs. 

In  the  case  of  Tidwell  Canal  Company  v.  the  Pioneer 
Ditch  Company,  1904,  the  waters  of  the  Price  River 
were  awarded  to  certain  canals  with  "  sufficient  waters 
to  irrigate  a  given  area."  The  waters  of  each  canal 
were  then  decreed  to  the  several  users  with  "  sufficient 
water  to  irrigate  "  a  given  number  of  acres  as  set  after 
the  appropriator's  name.  Variation  from  this  indef- 
inite award  was  made  in  case  of  grants  to  municipali- 
ties and  railroads  where  definite  measurements  of  water 
in  second-feet  were  made.  After  decreeing  to  the  nu- 
merous users  "  sufficient  water "  to  irrigate  a  given 
acreage  the  court  in  the  latter  part  of  the  decree  speci- 
fied that  for  1903  the  duty  of  water  should  be  one 
second-foot  of  water  for  each  sixty-five  acres  of  land. 
At  the  same  time  the  court  appointed  a  water  commis- 
sioner (water-master)  to  carry  out  the  decree  of  distri- 
bution, using  the  above  "  duty  of  water  as  a  basis  of 
said  distribution  during  the  said  year,  provided  that  if 
said  commissioner  upon  careful  inquiry  and  observation 
shall  find  that  said  duty  of  water  is  too  high  or  too  low 
for  any  specific  parcel  or  parcels  of  land  he  may,  at 
his  discretion,  decrease  or  increase  said  quantity  of 
water  so  as  to  sufficiently  irrigate  said  parcel  or  parcels 
of  land." 


THE  DISTRICT  COURTS  AND  IRRIGATION  155 

After  issuing  the  decree  the  court,  as  the  foregoing 
quotation  clearly  indicates,  turned  the  real  adjustment 
over  to  the  water  commissioner.  With  its  limited  in- 
formation the  court  did  the  proper  thing.  In  fact  what 
else  could  the  judge  do  with  his  lack  of  knowledge  of 
irrigation  engineering?  What  do  the  opponents  of  the 
Oregon  and  the  Wyoming  systems  have  to  say  to  this 
procedure  ?  If  it  is  granting  judicial  authority  to  a 
water  commissioner  to  distribute  water  before  the  case 
comes  before  a  court  is  it  not  equally  so  after  the  court 
has  adjudicated  the  difficulty  if  the  court  gives  a  water 
commissioner  authority  to  change  its  decree  at  his  dis- 
cretion ?  In  fact  the  court  showed  its  wisdom  in  turning 
over  the  problem  to  an  engineer.  The  facts  are  that  the 
apportionment  and  distribution  of  water  is  largely  an 
agricultural  and  engineering  problem  and  should  be 
carefully  investigated  and  passed  upon  by  an  adminis- 
trative body  before  coming  before  law  courts. 

In  the  case  of  the  Richfield  Irrigation  Company  et 
al,  v.  Circleville  Irrigation  Company  et  al,  1906,  the 
water  was  decreed  in  the  main  in  second-feet.  In  sev- 
eral awards,  however,  the  claimants  were  given  "  all 
of  the  waters  "  of  a  designated  spring  or  stream.  The 
decree  was  based  in  the  main  on  the  old  usage  which  had 
prevailed  in  the  community  for  years.  The  decree  em- 
bodied usage  rather  than  scientific  information  as  to  the 
flow  of  streams  and  the  needs  of  the  soil. 

In  Provo  Reservoir  Company  v.  Provo  City,  1917, 
the  terms  of  the  decree  were  in  second  feet  but  the 
principle  involved  was  the  awarding  of  all  the  stream 
to  the  claimants.  The  court  says  "  The  duty  of  water 
upon  such  streams  shall,  during  the  high  or  flood  water 


156      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

period,  be  forty  acres  for  each  second  foot ;  and  during 
the  receding  waters  the  duty  shall  be  upon  a  graduating 
scale  decreasing  to  sixty  acres  per  second  foot."  The 
flood  waters  come  in  the  spring  at  the  same  time  that 
spring  rains  occur.  The  query  then  naturally  arises 
why  does  the  land  in  the  spring  or  moist  season  need 
one  second  foot  of  water  to  forty  acres  whereas  in  the  dry 
summer  season  it  needs  only  one  second  foot  to  sixty 
acres,  except  on  the  principle  that  all  claimants  shall  be 
given  all  they  ask  at  any  season,  provided  there  is  enough 
to  go  round?  For  it  is  generally  recognized  that  one 
second  foot  for  sixty  acres  is  more  than  ample  except 
in  gravelly  soil. 

The  unfortunate  part  of  such  a  method  of  distribution 
is  that  it  awards  the  spring  flood  waters,  which  should 
be  available  for  storage,  to  parties  who  do  not  and 
cannot  use  them  and  who  allow  them  to  run  to  waste. 
To  obtain  the  right  to  store  these  waters  in  reservoirs 
usually  means  another  expensive  law  suit  to  prove  that 
the  early  waters  are  not  beneficially  used. 

A  study  similar  to  the  foregoing  could  be  continued 
through  a  large  number  of  cases,  but  the  conclusions 
arrived  at  and  the  actions  taken  by  the  courts  were 
much  the  same  in  every  instance.  It  would  therefore 
be  a  wearisome  effort  to  present  them  in  detail.  A 
general  consideration  of  the  irrigation  problem  before 
the  district  courts  would  serve  the  reader's  purpose  much 
better.  The  United  States  Department  of  Agriculture 
in  Bulletin  124  made  a  careful  study  of  forty  cases 
brought  to  trial  in  the  Sevier  River  drainage  basin. 
The  conclusions  reached  after  an  extended  study  are 
very  valuable  and  present  a  clear  analysis  of  the  situa- 


THE  DISTRICT  COURTS  AND  IRRIGATION  157 

tion  as  it  stands  before  the  trial  courts.  In  lieu  of  an 
extended  discussion  the  conclusions  reached  and  the  sug- 
gestions offered  are  quoted: 

The  foregoing  outline  states  in  brief  the  purpose,  charac- 
ter, and  result  of  the  forty  suits  over  water  rights  on  Sevier 
River  and  its  tributaries  during  the  past  sixteen  years. 
With  the  exception  of  two  or  three  minor  cases,  the  papers 
of  which  are  lost  from  the  county  records  or  whose  titles 
search  failed  to  disclose,  and  the  case  of  Kraft  et  al.,  affecting 
Sevier  River  below  Deseret,  the  outline  is  believed  to  be 
complete. 

In  deciding  the  efficiency  of  the  litigation  on  Sevier  River 
in  determining  rights  to  water  for  irrigation,  there  are 
obviously  two  main  grounds  to  consider,  (1)  has  it  worked 
justice  between  the  parties  to  the  litigation;  and  (2)  has  it 
worked  justice  between  the  litigants  and  the  public?  It  is 
safe  to  assume  that  if  it  has  failed  on  either  or  both  of  these 
grounds  it  has  not  been  final,  because  no  matter  how  far- 
reaching  or  how  well  supported  by  legal  doctrine  the  decrees 
may  be,  if  they  are  right,  if  the  interests  of  all  concerned, 
whether  individual  or  public,  have  not  been  fully  and  care- 
fully guarded,  the  time  will  come  when  they  will  be  set 
aside  and  the  issues  threshed  over  until  justice  is  done.  And 
if  it  should  be  found  that  the  litigation  has  not  fallen  short 
on  these  two  grounds,  the  query  would  still  be  pertinent  as  to 
whether  the  process  of  the  courts,  counting  time  and  cer- 
tainty as  well  as  money  considerations,  has  not  been  more 
expensive  than  was  necessary  or  than  the  benefits  which  have 
accrued  to  the  irrigators  have  warranted. 

EFFECTS  OF  LITIGATION  ON  THE  RIGHTS  OF  LITIGANTS 

To  answer  the  first  query  it  will  be  necessary  to  refer  to 
some  of  the  significant  features  of  the  litigation. 

FAULTY  BEGINNINGS  OF  ADJUDICATIONS 

When  a  suit  seeking  the  ending  of  an  alleged  trespass  on 
a  water  right  or  a  quieting  of  title  to  the  water  of  a  stream 


158      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

is  filed,  it  is  the  practice  for  the  plaintiff  to  claim  adversely 
to  the  defendant  the  entire  stream  in  question,  basing  the 
claim  for  instance,  on  an  alleged  diversion  of  "  all  the 
waters  of  said  river  therein  flowing  from  every  source  what- 
soever," and  alleging  "  the  actual,  peaceable,  quiet,  undis- 
turbed, adverse,  and  notorious  possession  of  said  waters  as 
against  all  persons  whomsoever,"  except  as  interfered  with 
by  the  defendants.  This  may  be  a  good  beginning  for  one 
individual  seeking  to  end  a  trespass  by  another,  yet  it 
hardly  seems  a  proper  way  for  one  hundred  or  more  farmers 
to  commence  an  action  to  define  their  rights  to  water.  While 
it  may  have  no  further  effect  than  opening  the  case  for  settle- 
ment it  would  seem  that  an  order  from  the  adjudicating 
authority  directing  each  irrigator  to  present  testimony  as  to 
the  date  and  amount  of  his  use  would  be  more  direct  and  less 
confusing  to  the  farmers.  Such  a  procedure  would  also 
rid  the  adjudication  of  the  present  objectional  controversy 
between  individual  irrigators  and  make  an  issue  between  the 
State  and  the  individual  rather  than  between  the  individuals. 
To  determine  such  simple  facts  as  the  capacity  of  a  ditch 
and  the  area  of  land  watered  by  it,  facts  which  a  mere 
survey  will  show,  there  seems  little  necessity  or  justification 
for  extravagant  and  untruthful  claims.  No  way  for  these 
simple  facts  to  be  presented  in  court  by  some  disinterested 
officer  was  found  in  the  course  of  the  litigation  of  the  Sevier. 
In  one  case,  by  consent  of  the  parties  interested,  the  trial 
judge  personally  viewed  the  premises  in  dispute,  but  in  most 
cases  such  action  would  be  impracticable  if  not  inexpedient. 
In  another  case,  the  plaintiff  introduced  detailed  plats  to 
show  the  area  watered  by  each  party  to  the  suit,  and  stood 
ready  to  support  them  by  testimony  of  witnesses;  yet  the 
plats  were  not  made  from  actual  surveys  and  were  prepared 
by  interested  parties,  so  that  there  was  no  assurance  before 
the  court  other  than  that  of  interested  witnesses  that  they 
were  accurate. 

EVIDENCE  ON  DUTY  OF  WATER 

As  it  has  been  with  the  area  of  land  watered  and  the  fact 
of  watering,  so  it  has  in  a  measure  been  with  the  duty  of 


THE  DISTRICT  COURTS  AND  IRRIGATION  159 

water.  This  is  equally  essential  as  a  basis  for  adjudication, 
yet  it  is  not  mentioned  in  many  of  the  Sevier  decrees,  al- 
though the  courts  have  recognized  and  emphasized  its  sig- 
nificance in  the  recent  important  cases.  In  one  an  engineer 
was  employed  by  one  side  to  ascertain  the  duty  of  water  in 
the  different  districts  affected.  His  report  was  based  on  an 
examination  of  soil  samples  and  under  the  circumstances 
could  be  no  more  than  approximate.  While  the  information 
he  presented  was  of  great  value  in  the  suit  and  showed  that 
the  importance  of  knowing  the  duty  of  water  was  appreciated, 
it  was  far  short  of  a  satisfactory  basis  for  settling  rights  to 
the  extent  involved  in  this  case,  and  should  not  be  allowed 
to  justify  such  a  method  when  a  better  one  is  possible.  In 
one  case  the  court  refused  to  render  a  permanent  decree  until 
such  time  as  a  court  commissioner  should  have  ascertained  by 
measurement  and  study  what  the  duty  of  water  was  and 
what  the  stream  in  question  carried  at  different  seasons  of 
the  year.  A  temporary  decree  was  therefore  rendered  and  a 
permanent  decree  will  not  be  signed  until  the  court  is  assured 
of  its  correctness. 

EVIDENCE  ON  FLOW  OF  STREAMS 

With  perhaps  the  exception  of  that  just  mentioned,  in  none 
of  the  cases  of  litigation  on  the  Sevier  has  the  importance  of 
a  knowledge  of  the  flow  of  streams  adjudicated  been  recog- 
nized, or,  if  it  has  been  recognized  by  the  court,  no  steps 
have  been  taken  or  no  way  found  to  get  this  information  in 
reliable  form  before  the  court.  While  there  are  no  instances 
on  the  Sevier  of  the  wide  discrepancies  between  the  flow  of 
streams  and  the  amount  of  water  decreed,  so  common  until 
recently  in  some  sections  of  the  West,  the  evidence  on  the 
flow  of  streams  introduced  at  some  of  the  trials  was  mere 
speculation.  In  most  of  the  recent  cases  the  practice  has 
been  adopted  of  ordering  a  prorating  of  the  water  in  a  stream 
among  the  holders  of  decreed  rights  of  any  class  whenever  the 
flow  of  the  stream  should  fall  below  the  amount  decreed  to 
that  class.  This  practice  is  a  natural  result  of  the  provision 
for  prorating  among  the  holders  of  primary  rights  in  the 


;.v,0      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

State  statutes.  Although  it  reduces  the  ill  effects  of  decree- 
ing water  in  excess  of  the  flow,  in  no  sense  does  it  take  the 
place  of  an  exact  knowledge  of  stream  flow  based  on  measure- 
ments extending  over  a  sufficient  number  of  years  to  show  a 
reliable  normal.  It  is  of  course  true  that  exact  information 
on  this  subject  is  not  now  available,  yet  it  must  be  available 
before  rights  on  the  Sevier  can  be  settled. 

No  decree  has  been  rendered  on  the  Sevier  which  is  not 
liable  to  lose  a  part  or  all  of  its  force  by  a  later  decree.  It  is 
doubtful  if  in  one  of  the  suits  that  have  been  brought  to  quiet 
title  a  majority  of  the  water  users  concerned  did  not  believe 
the  suit  was  going  to  settle  their  rights  so  conclusively  that 
they  could  never  again  be  assailed  in  court.  Yet  this  has  not 
been  the  result  in  even  the  two  most  important  cases  brought 
to  quiet  title  which  have  been  decided  —  Richfield  Irrigation 
Canal  Company  et  al.  v.  Clear  Creek  Irrigation  Canal  et  al., 
affecting  the  Sevier  from  the  dam  of  the  Vermilion  Irrigation 
Company  in  the  lower  Sevier  Valley  to  the  headwaters  of 
East  Fork  in  Garfield  County;  and  Deseret  Irrigation  Com- 
pany et  al.  v.  Samuel  Mclntire  et  al.,  affecting  the  Sevier  from 
the  canal  of  the  West  View  Irrigation  Company  in  Sanpete 
County  to  Deseret  in  Millard  County.  Many  of  the  rights 
decreed  in  the  first-named  case  are  already  being  assailed  in 
the  case  of  Richfield  Irrigation  Canal  Company  et  al.  v. 
Circleville  Irrigation  Company  et  al.,  and  the  rights  decreed 
in  the  other  are  sure  to  be  questioned,  if  not  in  a  suit 
affecting  the  water  both  below  and  above  the  canal  of  the 
West  View  Irrigation  Company  in  Sanpete  County,  then  in  a 
suit  which,  if  conditions  continue  as  in  the  past,  will  come 
when  water  is  more  valuable  and  in  greater  demand  for  the 
wide  areas  of  tillable  land  on  the  Sevier  desert  below  the  town 
of  Deseret. 

That  issue  will  be  taken  with  this  statement  is  not  doubted, 
yet  if  the  history  of  past  litigation  on  the  Sevier  is  any  guide 
to  the  future,  there  can  be  little  question  of  its  truth.  No 
water  user's  rights  are  certain  until  they  established  good 
against  all  the  world.  A  civil  suit  in  law  can  affect  only 
those  who  are  parties  to  it.  If  only  a  portion  of  those  using 


THE  DISTRICT  COURTS  AND  IRRIGATION  161 

or  claiming  the  right  to  use  water  from  a  stream  or  its  supply 
are  concerned,  as  has  been  the  case  in  every  suit  thus  far 
prosecuted  on  the  Sevier,  there  is  no  possible  way  to  prevent 
the  rights  established  in  one  suit  from  being  assailed  in  an- 
other. And  the  longer  such  an  imperfect  decree  remains  in 
force  the  greater  is  the  injury  done,  because  it  deceives  those 
affected  into  believing  that  permanent  which  in  the  nature  of 
the  case  can  not  be  so,  a  result  which  only  too  often  engenders 
distrust  of  even  that  which  is  permanent. 

Under  the  statutes  of  Utah,  a  plaintiff  may  make 
any  or  all  persons  who  have  diverted  water  from  the 
same  stream  or  source  parties  to  one  suit;  or  if  inter- 
ested parties  are  not  represented  they  may  enter  the 
suit  on  leave  of  the  court,  by  filing  a  complaint  in  inter- 
vention, joining  with  either  the  plaintiff  or  the  defend- 
ant or  making  demands  adversely  to  both ;  or  their  ap- 
pearance may  be  ordered  by  the  court  when  a  complete 
determination  of  the  rights  can  not  be  had  without  their 
presence.  It  is  therefore  rather  surprising  to  still  find 
suits  being  prosecuted  which  do  not  include  even  all 
of  those  using  water  from  the  immediate  tributary  or 
section  of  the  stream.  It  must  be  said,  however,  that 
these  suits  are  rather  the  exception  than  the  rule,  be- 
cause the  seven  most  extensive  suits  on  the  Sevier  have 
aimed  to  include  all  irrigators  within  the  territory  em- 
braced by  the  suit,  even  if  they  did  not  include  all  of 
the  tributaries  or  all  of  the  stream,  as  already  explained. 

ESTABLISHING    WATER    BIGHTS    BY    STIPULATION 

A  practice  in  water  litigation  on  the  Sevier  which  is 
common,  and  whose  demoralizing  influence  is  admitted 
and  deplored  by  many,  is  that  of  settling  the  litiga- 
tion by  stipulation  of  the  parties  to  the  suit.  In  12  of 


162      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  40  cases  the  final  settlement  was  affected  in  this 
manner,  while  in  a  number  of  others,  notably  that  of 
Richfield  Irrigation  Canal  Company  et  al.  v.  Clear 
Creek  Irrigation  Company  et  al.,  stipulation  was  re- 
sorted to  to  settle  some  of  the  rights.  In  this  case  a 
committee  of  the  plaintiffs,  under  direction  of  their 
attorney,  visited  each  defendant  appropriator  in  the 
case  and  endeavored  to  reach  an  agreement  with  him  as 
to  what  amount  of  water  he  was  entitled  to.  In  some 
cases  no  agreement  could  be  reached,  but  where  one  was 
possible,  the  following  stipulation  was  signed  by  the  de- 
fendant and  the  attorney  for  the  plaintiff : 

It  is  hereby  stipulated  by  the  plaintiffs  and  the  defendant, 

,  that  said  defendant  has  for  more  than  seven  years 

prior  to  the  filing  of  this  action,  used,  and  is  entitled  to  a 
decree  herein  confirming  his  right  to  the  use  of  sufficient  of 

the  water  of  to  irrigate  acres  of  land  in  

County,  Utah. 

That cubic  feet  per  second  of  time,  measured  at  said 

defendant's  head  gate  in  said  stream,  is  the  amount  required 
to  properly  and  economically  irrigate  said  land,  and  the 
manner  in  which  said  water  shall  be  regulated  and  controlled 
in  the  said  use  is  the  only  issue  herein  which  the  court  is 
called  upon  to  determine  between  the  plaintiffs  and  the  said 
defendants. 

While  agreement  out  of  court  is  in  many  respects 
preferable  to  contention  in  court,  there  is  a  point  to 
which  this  agreement  can  not,  in  justice  to  all,  be  car- 
ried. That  point  is  reached  when  stipulation  is  at- 
tempted between  a  well-selected  committee  representing 
a  number  of  strong  irrigation  companies  seeking  con- 
trol of  all  of  the  water  that  it  is  possible  for  them  to  get 
and  an  individual  farmer  who  probably  knows  very 


THE  DISTRICT  COURTS  AND  IRRIGATION  163 

little  as  to  his  requirements  for  irrigation  when  stated 
in  cubic  feet  per  second  or  any  other  definite  unit  of 
measurement,  A  stipulation  under  such  conditions 
might  or  might  not  be  fair  to  the  individual,  but  even  if 
it  were,,  it  might  or  might  not  be  fair  to  the  other  parties 
of  the  suit.  Such  a  committee  would  doubtless  have  a 
limit  beyond  which  it  would  not  go  in  conceding  a 
right.  Up  to  that  limit,  the  quantity  of  water  which 
each  claimant  would  receive  by  the  stipulation  would 
depend  more  upon  his  assertiveness  than  on  his  right, 
and  there  will  be  no  necessary  uniformity  in  the  basis  of 
rights  recognized  by  the  stipulation.  Obviously,  the 
same  standard  should  measure  all  like  rights,  and  it  is 
not  to  be  expected  that  that  standard  will  be  applied  by 
any  one  other  than  a  disinterested  person.  While  it 
may  lessen  the  expense  and  trouble  of  settling  a  contro- 
versy in  court  to  have  one-half  of  it  settled  outside  of 
court,  there  will  be  no  assurance  when  a  decree  is  ren- 
dered that  the  rights  settled  in  court  correspond  to  the 
rights  settled  outside. 

Besides  the  injustice  sure  to  follow  the  lack  of  a 
uniform  basis  in  determining  rights  to  the  same  stream 
there  is  a  further  objection  to  such  stipulation  as  used  in 
the  case  of  Kichfield  Irrigation  Canal  Company  et  al.  v. 
Clear  Creek  Irrigation  Company  et  al.,  cited  above. 
This  arises  from  the  possibility  that  such  a  stipulation 
may  in  a  later  suit  be  held  to  have  determined  only  the 
rights  between  the  parties  to  the  stipulation.  No  case 
purporting  to  settle  all  of  the  rights  on  a  stream  has 
been  found  in  which  a  stipulation  has  been  held  not 
binding  on  those  not  agreeing  to  it,  and  the  natural  in- 
ference is  that  when  the  court,  in  determining  from 


164      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  evidence  the  rights  of  the  individual  users,  em- 
bodies these  stipulations,  in  his  decree,  they  become 
final  in  the  eyes  of  the  law  because  not  questioned  dur- 
ing the  progress  of  the  trial.  The  injustice  of  such  a 
ruling,  however,  warrants  a  doubt  if,  when  once  tested, 
it  would  not  be  overthrown  and  the  rights  between  the 
parties  entering  and  those  not  entering  the  stipulation 
left  again  in  doubt 

The  objections  to  the  settlement  of  all  rights  to  a 
stream  by  stipulation  are  of  a  somewhat  different  nature. 
At  the  end  of  a  complicated  and  protracted  water  suit, 
after  each  side  in  the  suit  has  reached  the  limit  to  which 
it  can  go  in  its  testimony,  it  is  quite  common  for  a 
stampede  of  stipulations  to  begin'  which  will  perhaps 
end  only  when  the  whole  available  supply  of  water  has 
been  divided,  without  regard,  perhaps,  to  much  of  the 
testimony  that  has  been  introduced  in  the  trial  or  at 
any  rate  without  regard  to  the  real  duty  of  water  or  the 
rights  of  appropriators  not  represented,  or  of  those  who 
may  desire  a  few  years  later  to  reclaim  some  of  the 
desert  land  lying  under  the  stream  in  question.  The 
result  is  very  liable  to  be  that  the  rights  of  the  weakest 
in  defense  are  considerably  reduced  from  what  they 
would  have  been  had  the  court,  after  a  careful  examina- 
tion of  all  the  testimony,  made  a  systematic  award.  It 
is  of  course  urged  in  defense  of  such  a  stipulation  that 
those  making  it  would  not  consent  to  it  if  their  rights 
were  not  protected,  yet  it  is  a  fact  that  this  is  not  always 
the  case,  because  it  sometimes  happens  that  those  whose 
rights  are  stipulated  are  not  represented  by  attorneys. 
There  is  on  record  an  order  of  court  emphatically  re- 
fusing to  sanction  a  decree  stipulating  away  the  rights 


THE  DISTRICT  COURTS  AND  IRRIGATION  165 

of  unrepresented  parties  "  simply  because  some  of  them 
have  refused  to  hire  an  attorney  and  pay  out  four  or 
five  times  what  their  water  is  worth  in  order  to  em- 
ploy them."  One  farmer  shrewder  than  others  may 
gain  water  on  a  lower  duty  than  others,  with  the  same 
resulting  variance  in  the  basis  of  awards  as  in  the  stipu- 
lations out  of  court.  The  acquiescence  of  the  less 
shrewd  is  no  excuse  for  the  public  failing  to  protect 
him. 

Although  the  lack  in  uniformity  resulting  from  stipu- 
lation may  be  serious,  the  injury  to  the  public  is  far 
more  so.  To  have  the  appropriators  from  a  public 
stream  divide  its  water  among  themselves  under  sanction 
of  the  court  has  no  justification.  Under  such  a  prac- 
tice those  taking  water  from  a  stream,  even  if  they  do 
not  use  half  its  water,  may  agree  to  a  division  of  the 
whole  supply  among  themselves,  and  in  that  way  ac- 
quire title  to  public  property,  not  from  the  public  and 
by  use,  as  the  law  provides,  but  from  each  other  and  by 
agreement.  The  stream  is  the  property  of  the  public, 
and  should  be  carefully  conserved  in  the  interests  of 
future  appropriators,  yet  there  is  on  record  in  the 
Sevier  River  cases  no  action  by  a  court  looking  to  pro- 
tection of  the  rights  of  the  public,  and  it  is  doubtful  if 
such  action  is  authorized  by  statute. 

The  fault  of  this  situation  does  not  lie  at  the  door  of 
the  trial  courts.  The  great  need  is  for  a  properly  or- 
ganized state  engineering  department  with  authority  to 
measure  the  flow  of  the  streams,  and  the  acreage  to  be 
irrigated,  and  also  to  determine  the  amount  of  water 
needed  by  the  different  soils.  If  when  this  work  were 
completed  the  state  engineer  had  authority  to  make  a 


166      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

preliminary  order  of  distribution  pending  a  considera- 
tion by  the  district  court,  the  court  would  then  have  time 
for  a  careful  consideration  based  upon  scientific  infor- 
mation gathered  by  a  disinterested  public  official. 


CHAPTEE  X 

SUPREME    COURT   DECISIONS    AND    IRRIGATION RIPA- 
RIAN  RIGHTS   AND   APPROPRIATION 

In  humid  regions  in  English  speaking  countries,  the 
doctrine  of  riparian  rights  has  held  from  time  imme- 
morial. It  is  the  doctrine  which  holds  that  the  owner 
of  the  land  bordering  on  a  stream  is  entitled  to  have 
it  flow  on  as  it  has  been  accustomed  to  do  without  any 
serious  interference.  That  is  to  say  that  a  land  owner 
bordering  upon  the  stream  above  may  use  the  water 
to  turn  a  mill  or  in  other  ways  produce  power  provided 
that  he  returns  the  water  unreduced  in  quantity  or  un- 
polluted in  quality  to  its  original  channel  before  it 
reaches  the  land  of  the  riparian  owner  below.  Such  a 
doctrine  was  entirely  unsuited  to  the  arid  region,  and 
Colorado  specifically  abolished  it  early  by  legislative 
enactment. 

In  all,  legislation  pertaining  to  the  waters  of  the  ter- 
ritory or  of  the  State  of  Utah  the  legislature  ignored 
the  law  of  riparian  rights  and  applied  the  doctrine  of 
appropriation  for  beneficial  and  economical  use.  The 
law  of  riparian  rights  was  never  specifically  set  aside  by 
law  in  Utah,  and  strange  to  say  it  did  not  become  an 
issue  before  the  Supreme  Court  of  the  territory  until 
1891.  The  court  then  held  in  Stowel  et  al,  v.  Johnson 
et  al,  that  the  law  of  riparian  rights  was  not  in  force  in 

167 


168      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

Utah.  It  further  said  "  that  such  a  doctrine  would 
make  this  western  country  a  desert.  That  a  man  hold- 
ing ten  acres  down  on  the  stream  could  make  all  the  land 
above  useless."  (7  Utah  215—;  26  Pac.  290.) 

As  the  doctrine  of  appropriation  has  been  consist- 
ently followed  in  Utah  it  will  be  of  interest  to  know  how 
the  highest  tribunal  in  the  State  defines  it. 

In  Hague  v.  Nephi  Irrigation  Company  (16  Utah 
42;  52  Pac.  765)  the  court  said  in  1898:  "  The  appro- 
priation of  water  does  not  mean  merely  the  diverting  of 
it,  but  includes  the  use  of  it  for  beneficial  purposes.  The 
appropriation,  the  intention  of  appropriator,  use  and 
beneficial  purpose  are  the  tests  which  determine  the 
rights  acquired  by  the  diversion  from  the  stream.  The 
object  and  intention,  under  the  law  in  diverting  water 
must  be  to  apply  it  to  some  useful  purpose,  and  if  by 
means  of  ditches  more  is  diverted  than  is  necessary  for 
such  purposes  the  excess  cannot  be  regarded  as  a  diver- 
sion for  a  useful  purpose ;  for  as  a  matter  of  fact,  such 
excess  merely  runs  to  waste  and  its  diversion  cannot 
result  in  a  vested  right.  If  therefore  A  who  owns  and 
intends  to  irrigate  but  one  acre  of  land  diverts  all  the 
water  of  a  natural  stream,  which  is  sufficient  to  irrigate 
two  acres  he  obtains  a  right  only  to  sufficient  water  to 
irrigate  his  own  one  acre  and  B.  who  owns  an  acre  may 
appropriate  the  excess.  If  there  is  no  intention  on  the 
part  of  the  appropriator  to  apply  the  water  to  such 
purpose  within  a  reasonable  time,  there  is  no  valid  ap- 
propriation and  the  water  remains  subject  to  appropria- 
tion by  others.  So  where  there  is  more  diverted  than 
is  necessary  for  the  object  of  the  appropriation  there 
can  be  no  intention  to  apply  the  excess  it  remains 


SUPREME  COURT  DECISIONS  169 

subject  to  appropriation."  The  court  here  quotes  and 
approves  Kinney's  "  Irrigation,"  paragraph  150  which 
says :  "  This  intention  goes  to  the  very  foundation  of 
the  act  of  appropriation  and  must  be  evidenced  by  a  con- 
stancy or  steadfastness  of  purpose  or  labor  as  is  usual 
with  men  when  engaged  in  like  enterprises  who  desire  a 
speedy  accomplishment  of  their  designs.  If  we  con- 
cede that  a  man  has  a  right  by  mere  priority  to  take  as 
much  water  from  a  running  stream  as  he  chooses  to  be 
applied  to  such  purposes  as  he  pleases  the  question  still 
arises  what  did  he  choose  to  take." 

In  Eliot  v.  Whitmore  et  al,  1901  (23  Utah  342;  65 
Pac.  TO)  the  question  whether  or  not  an  appropriator 
has  to  use  all  the  water  he  intends  to  at  once  was 
considered.  The  court  said :  "  We  see  no  reason  why 
a  settler  in  a  new  country  may  not  appropriate  the 
waters  of  an  adjacent  creek  without  having  the  lands  he 
contemplates  using  the  water  upon  in  a  condition  fit 
for  irrigation  at  the  time  of  his  first  diversion  of  such 
waters  at  least  until  some  other  settlers  complete  a 
successful,  necessary  and  beneficial  use  of  the  then  un- 
appropriated waters  of  a  creek.  He  is  not  confined  to 
an  appropriation  simply  for  the  amount  of  land  irri- 
gated during  the  first  year  of  his  diversion.  The  ex- 
tent of  an  appropriation  of  water  is  determined  by  the 
reasonable  necessity  for  the  use  of  the  waters  by  the 
intention  of  the  appropriator,  followed  by  a  reasonable 
diligence  in  executing  such  intent  and  by  beneficial  pur- 
pose for  which  the  appropriation  is  made." 

In  Fuller  et  al  v.  Sharpe  et  al,  1908  (94  Pac.  813) 
the  court  said :  "  That  the  first  in  point  of  time  in  ap- 
propriating said  water  and  constructing  said  ditches  are 


170      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

entitled  to  the  first  right  in  the  waters  of  said  stream  and 
so  on  successively  to  the  last  appropriator ;  that  in  case 
the  water  is  insufficient  in  said  stream  at  any  time  to  fill 
all  of  said  ditches  then  those  having  the  junior  appro- 
priation shall  turn  into  the  natural  channel  of  the  stream 
all  of  the  waters  diverted  by  them  until  sufficient  is 
turned  into  said  stream  to  supply  the  ditches  of  any 
prior  appropriator  in  point  of  time." 

In  the  Settlement  of  Lehi  there  were  many  first  set- 
tlers, and  others  came  later  upon  the  Mormon  bishop's 
invitation  and  were  taken  in  the  canal  system  as  they 
began  to  cultivate  land.  The  ditch  was  gradually  en- 
larged when  cleaned  and  also  at  certain  other  intervals. 
The  new  settlers  were  usually  invited  by  the  bishop  to 
help  in  the  cleaning  and  enlarging  the  canals.  The 
irrigation  canals  were  looked  upon  as  community  en- 
terprises and  for  over  twenty-five  years  the  question  of 
priority  did  not  arise.  When  water  became  scarce  for 
the  amount  of  land  irrigated  some  of  the  older  settlers 
set  up  priority  claims  as  to  the  use  of  water.  In  1886 
the  matter  came  before  the  Supreme  Court  of  the  terri- 
tory in  Lehi  Irrigation  Co.  v.  Moyle  et  al  when  the  court 
said :  "  The  appropriator  of  water  has  the  prior  right 
to  its  use  to  the  extent  in  amount  and  time  of  first  appro- 
priation and  possibly  to  the  extent  to  which  he  was  at 
that  time  preparing  to  appropriate  it."  In  respect  to 
these  settlers  coming  in  later  the  court  said :  "  It  was  a 
permission  to  use  the  water  and  the  ditch  from  year  to 
year  believing  that  they  had  the  right  to  use  the  same, 
and  upon  the  strength  of  this  belief  and  permission  to 
build  up  homes  for  themselves.  It  is  now  too  late  for 
appellant  to  say  that  they  were  acting  without  right." 


SUPREME  COURT  DECISIONS  171 

In  Patterson  v.  Ryan  (37  Utah  410)  decided  April 
27,  1910,  the  Supreme  Court  said:  "  The  right  to  use 
the  water  in  this  state  has  always  depended  upon 
whether  the  person  claiming  the  water  applied  it  to 
beneficial  use,  and  the  notice  and  record  required  by 
statute  was  merely  prima  facie  evidence  of  the  facts  re- 
cited therein,  namely  that  he  was  applying  the  water  to 
beneficial  use.  Any  person,  however,  who  actually  used 
the  water  for  a  useful  or  beneficial  purpose  acquired  the 
right  to  take  the  water  so  used  as  against  all  subsequent 
claimants  regardless  of  whether  the  user  posted  notices 
or  not." 

Following  along  the  same  line  in  Sawards  et  al  v. 
Meagler  et  al,  in  1910  (37  Utah  212),  the  rule  was  laid 
down :  "  In  order  that  the  appropriator  may  be  entitled 
to  the  use  of  such  water  it  is  not  essential  that  he  should 
have  located  or  taken  possession  of  any  tract  or  parcel 
of  public  domain  bordering  upon  the  stream  or  lake  from 
which  the  appropriation  is  made  or  that  he  even  have 
an  interest  in  or  to  the  lands  proposed  to  be  irrigated  if 
such  be  the  beneficial  purpose  of  the  appropriator." 
"  He  may  sell  and  dispose  of  the  water  conducted  to 
others  to  use  it  for  a  beneficial  purpose  on  land  claims 
possessed  or  owned  by  them,  and  in  which  they  have  an 
interest  and  upon  which  the  water  may  be  used  and  is 
applied  for  beneficial  purposes." 

PERCOLATING    WATERS 

In  one  of  the  earliest  cases  on  percolating  waters, 
Crescent  Mining  Co.  v.  Silver  King  Mining  Co.,  1308, 
the  Supreme  Court  of  Utah  adhered  to  the  established 
doctrine  applied  in  the  humid  regions,  that  the  perco- 


172      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

lating  waters  belonged  to  the  owner  of  the  land.  A 
doctrine  entirely  unsuited  to  the  arid  regions  was  there- 
by sustained.  The  court  said :  "  The  law  seems  to  be 
well  settled  that  water  percolating  through  the  soil  is 
not  and  cannot  be  distinguished  from  the  soil  itself. 
The  owner  of  the  soil  is  entitled  to  the  waters  percolating 
through  the  soil  and  such  water  is  not  subject  to  appro- 
priation. When  water  percolates  through  and  under  the 
surface  of  the  earth  upon  land  belonging  to  one  person 
and  comes  to  the  surface  just  before  it  empties  itself 
upon  the  land  of  another,  the  owner  of  such  land  has  no 
right  to  demand  that  such  percolation  shall  continue.  It 
is  held  that  a  person  may  lawfully  dig  a  well  on  his  own 
land  though  thereby  he  destroys  the  subterranean  un- 
defined percolating  water  of  his  neighbor's  spring  and 
no  action  will  lie  therefore."  (17  Utah  444;  54  Pac. 
244.) 

About  1852  various  settlers  located  in  or  near  the  vil- 
lage of  Harriman  in  Salt  Lake  County.  In  all  there 
were  about  thirty-five  families  who  appropriated  the 
waters  of  Butterfield  Creek  for  the  irrigation  of  farm 
lands  and  culinary  purposes.  The  appropriators  used 
the  waters  continuously  from  the  date  of  appropriation 
until  1894  without  interference  of  any  sort.  Butter- 
field  Creek  was  supplied  by  springs  rising  in  the  moun- 
tains. About  1890  tunnels  were  dug  in  the  mountains 
by  the  Butterfield  Mining  Company  for  mining  pur- 
poses specifically  and  not  for  the  purpose  of  securing 
water.  From  indisputable  evidence  it  was  established 
that  upon  the  construction  of  the  tunnels  that  numerous 
springs  which  had  fed  Butterfield  Creek  and  its  tribu- 
taries large  quantities  of  water  for  forty  years  immed- 


SUPREME  COURT  DECISIONS  173 

lately  ceased  to  flow.  It  was  also  established  that  these 
springs  were  not  the  outlet  of  any  subsurface  water 
course  or  stream  having  any  defined  channel  connecting 
them  with  any  body  of  water. 

To  a  considerable  extent  the  welfare  of  this  village 
established  in  the  early  settlement  of  the  territory  was 
dependent  upon  the  determination  of  the  court  as  to 
whether  a  mining  company  seeking  minerals  could  tap 
these  supplies  of  percolating  waters,  divert  them  from 
their  natural  outlets  and  sell  the  water  thus  obtained  or 
use  it  upon  other  lands.  The  Supreme  Court  held 
"  Such  water  so  hidden  in  the  bowels  of  the  earth  be- 
longs to  the  owner  of  the  soil  and  he  has  the  right  to  dig 
for  it  upon  his  own  and  appropriate  it  and  use  it  if 
he  chooses  to  do  so;  and  if  it  thereby  is  a  loss  to  his 
neighbor  it  is  dammum  absque  injuria.  Water  standing 
on  the  land  underneath  the  surface  or  into  it  by  filtra- 
tion, percolation  chemical  attraction  or  in  undefined  and 
unknown  streams  is  such  an  advantage  which  the  owner 
of  the  land  is  left  to  enjoy."  (25  Utah  96;  69  Pac. 
719.) 

Investigation  showed  that  in  reality  one-half  of  the 
water  flowing  from  the  tunnel  was  due  to  the  diversion 
of  the  waters  from  the  springs.  This  decision  was  ren- 
dered in  1894  and  if  it  was  to  stand  as  the  fixed  law  of 
the  state  it  would  obviously  endanger  the  permanent  wel- 
fare of  many  of  the  towns  and  villages  of  the  common- 
wealth. Especially  would  this  be  the  case  where  mining 
is  contiguous  with  agriculture. 

In  many  cases,  all  that  was  necessary  to  destroy  the 
economic  prosperity  of  a  community  was  to  drive  a 
tunnel  in  search  of  ores  parallel  to  its  water  supply  and 


174      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  value  of  its  farm  lands  would  disappear.  Whatever 
may  be  said  of  such  a  doctrine  in  the  humid  regions  it 
obviously  had  no  basis  in  science  or  equity  or  permanent 
community  development  in  arid  lands. 

The  question  of  percolating  waters  did  not  come  be- 
fore the  court  again  until  1912,  a  period  of  18  years  had 
intervened,  and  statehood  had  come  to  the  former  terri- 
tory of  Utah.  During  territorial  days  it  had  been,  gen- 
erally speaking,  the  custom  to  appoint  Eastern  men  to 
the  bench  as  a  reward  of  political  service.  Under  state- 
hood the  judges  are  elected.  The  men  elected  had  form- 
erly served  on  the  bench  of  the  territorial  courts  but  had 
by  this  time  been  in  the  West  long  enough  to  know  many 
of  its  problems  first  handed  and  to  question  the  princi- 
ples of  law  held  in  the  East  pertaining  to  percolating 
waters  when  applied  to  conditions  wholly  different  from 
those  under  which  they  had  been  developed. 

In  Garns  v.  Rollins  1912,  the  court  said:  "  The  gen- 
eral trend,  however,  of  recent  decisions  in  many  of  the 
states  of  the  Union  is  away  from  the  English  rule  or 
common  law  doctrine  of  unqualified  and  absolute  right 
of  a  landowner  to  intercept  and  draw  from  his  land  the 
percolating  waters  therein.  In  later  cases  the  right  of 
the  landowner  to  subterranean  waters  percolating 
through  his  own  and  his  neighbors'  lands  and  which  is  a 
common  source  of  supply  for  the  lands  is  limited  to  a 
reasonable  and  beneficial  use  of  the  waters  upon  the  land 
or  to  some  other  useful  purpose  connected  with  its  occu- 
pation and  enjoyment.  No  surface  owner  possesses  the 
right  to  extract  the  subterranean  water  in  excess  of 
reasonable  and  beneficial  use  upon  the  land  from  which 
it  is  extracted."  The  court,  no  doubt,  had  in  mind  and 


SUPREME  COURT  DECISIONS  175 

followed  to  a  great  extent  the  epoch  making  California 
case  of  Katz  v.  Walkinshaw.  This  virtually  abrogated 
the  old  English  doctrine  in  respect  to  percolating  water, 
and  laid  down  the  doctrine  of  reasonable  use.  In  fact 
it  is  almost  a  complete  reversal  of  the  former  principles 
laid  down  in  Harriman  Irrigation  Co.  v.  Keel  et  al 
where  it  was  held  that  "  hidden  water  in  the  bowels  of 
the  earth  belonged  to  the  owner  of  the  soil,"  to  use  it  as 
he  chooses  to  do  so  "  without  restriction." 

In  1915  the  question  of  percolating  waters  was  again 
brought  before  the  court  in  the  case  of  Mountain  Lake 
Mining  Company  v.  Midway  Irrigation  Company. 
(149  Pac.  929.)  The  mining  company  had  driven  a 
tunnel  into  the  mountains  parallel  to  Snake  Creek  a 
stream  that  had  been  used  for  irrigation  for  25  years. 
The  tunnel  tapped  the  underground  and  percolating 
waters  and  greatly  reduced  the  flow  of  the  creek.  As 
the  water  emptied  from  the  tunnel  the  officials  of  the 
irrigation  company  diverted  it  back  into  the  stream 
under  the  claim  that  the  mining  company  had  not  de- 
veloped any  new  waters  but  had  only  intercepted  the 
percolating  waters  which  fed  the  springs  supplying  the 
Snake  Creek.  The  mining  company  maintained  that 
they  were  percolating  waters  and  therefore  belonged  to 
them  as  owners  of  the  soil.  The  Supreme  Court  said, 
"  It  is  a  well  recognized  rule  of  law  in  this  arid  region 
that  whereas  in  the  case  at  bar  a  party  goes  upon  a 
stream  the  waters  of  which  have  been  appropriated  and 
put  to  a  beneficial  use  by  others  and  drives  a  tunnel  into 
the  mountain  or  watershed  drained  by  the  stream  and 
immediately  under  or  in  close  proximity  to  the  stream 
collects  water  which  he  claims  to  be  developed  water  he 


176      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

must  make  satisfactory  proof  that  such  water  is  de- 
veloped. In  such  cases  it  is  immaterial  whether  the 
water  when  encountered  is  well  denned  subterranean 
channels  or  percolating  through  the  soil,  gravel,  fissures 
and  crevices  of  the  rock.  In  either  event  the  presump- 
tion is  until  overcome  by  satisfactory  proof  that  the 
water  is  tributary  to  the  main  stream  and  the  right  to 
it  is  vested  in  the  prior  appropriators  of  the  stream." 

In  December  1917,  the  court  said  in  Bastion  v.  Nebe- 
ker  (163  Pac.  1092)  :  "  It  is  settled  in  the  jurisdiction 
that  where  a  party  goes  upon  a  stream  and  at  or  near 
its  source,  the  waters  of  which  have  been  appropriated 
and  are  being  used  by  others  for  beneficial  purposes  and 
intercepts  or  taps  a  subterranean  flow  or  body  and  he 
claims  it  to  be  developed  water  the  burden  is  upon  him 
to  show  by  satisfactory  proof  that  the  intercepted  and 
diverted  is  developed  water." 

These  last  two  cases  cited  would  appear  to  have 
settled  the  law  of  percolating  waters  as  far  as  Utah  is 
concerned  and  finally  to  have  settled  them  right.  If 
new  water  is  developed  by  tunnels  being  driven  into  the 
mountains  the  men  driving  the  tunnels  are  entitled  to 
the  additional  water,  but  if  they  have  not  developed  new 
water  but  merely  intercepted  percolating  waters  to  the 
injury  of  those  who  have  already  applied  them  to  bene- 
ficial use  they  are  not  entitled  to  them.  The  case  of  the 
Deseret  Irrigation  Co.  v.  Butterfield  Mining  Co.  was 
not  based  on  science  or  justice  but  on  legal  tradition  and 
if  it  had  not  been  reversed  it  would  have  resulted  in 
ruination  to  many  communities  as  mining  development 
proceeded  in  a  state  that  offers  a  fruitful  field  for  mining 
operations. 


SUPREME  COURT  DECISIONS  177 


PLACE  AND  EXTENT  OF  USE 

Many  users  of  water  have  the  idea  that  they  can  use 
appropriated  waters  anywhere  they  may  want  to.  The 
Supreme  Court  in  the  case  of  Becker  v.  Marble  Creek 
Irrigation  Company  says :  "  The  waters  of  a  prior  ap- 
propriator  are  fixed  by  the  extent  of  his  appropriation 
for  beneficial  use  and  others  may  subsequently  appro- 
priate any  water  of  a  stream  not  used  by  a  prior  appro- 
priator,  and  such  later  appropriation  becomes  a  vested 
right  and  entitled  to  as  much  protection  as  the  former 
and  a  right  of  which  he  cannot  be  deprived  except  by 
voluntary  alienation,  or  forfeiture  by  abandonment. 
The  rights  of  the  former  being  thus  fixed,  he  cannot 
enlarge  his  right  to  the  detriment  of  the  latter  by  in- 
creasing his  demands  or  by  extending  his  use  to  other 
lands,  even  if  used  for  beneficial  purposes." 

DAVIS  &  WEBER 

Year  of 
Appropriation 

Kiverdale  Bench  Canal 1866        18.67  second  feet. 

Hooper  1867  115  second  feet. 

Wilson    1870  90  second  feet. 

(Diagram  illustrating  the  principle  involved  in  Mann- 
ing et  al  v.  Fife  et  al.) 

In  Manning  et  al  v.  Fife  et  al  the  Riverdale  Bench 
Canal  holding  the  oldest  right  of  the  four  canals  in- 
volved shut  down  for  five  days,  August  1,  1897,  with  the 
understanding  that  the  water  should  go  to  the  Davis  and 
Weber  Canal  Company.  The  lands  under  the  River- 
dale  Bench  Canal,  amounting  to  five  hundred  acres  were 


178      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

sufficiently  irrigated  when  the  water  was  turned  out  of 
the  canal  and  into  the  Davis  and  Weber  Canal.  The 
shutting  out  of  the  water  did  not  in  any  way  impair 
the  crops  under  the  Riverdale  Bench  Canal,  whereas  the 
diversion  of  the  water  did  seriously  injure  the  crops 
under  the  Hooper  and  the  Wilson  canals  due  to  the 
shortage  of  water.  The  Riverdale  Bench  Canal  Com- 
pany claimed  that  it  had  the  right  to  close  its  gates  and 
to  allow  the  Davis  and  Weber  Canal  Company  to  divert 
or  to  loan  the  use  of  the  water  to  the  amount  of  18.67 
second  feet  to  the  canal  above.  The  plaintiffs  claim  a 
prior  right  as  against  the  Davis  and  Weber  Canals  and 
contend  that  they  are  entitled  so  far  as  their  beneficial 
needs  extend  to  all  the  water  not  actually  used  by  the 
Riverdale  Bench  Company.  The  court  said :  "  Does  an 
appropriator  of  water  from  a  natural  source  of  supply, 
when  there  are  subsequent  appropriators  who  used  the 
water  and  actually  have  less  than  the  quantity  they  ap- 
propriated, have  the  right  to  divert  it  to  uses  other  than 
those  for  which  it  was  appropriated  by  giving  it  away  or 
wasting  it  ?  The  right  to  the  use  of  water  for  any  useful 
purpose  is  deemed  to  have  vested  as  a  primary  right  to 
the  reasonable  necessity  for  such  use.  The  right  only 
vests  to  the  extent  of  the  necessity  for  such  use.  The 
nominal  appropriation  as  to  quantity  may  be  sufficient 
to  afford  enough  at  times  when  the  most  water  is  needed 
and  to  that  limit  the  appropriator  may  draw  when  neces- 
sity requires ;  but  when  less  than  nominal  or  maximum 
quantity  is  needed  the  difference  must  go  to  subsequent 
appropriators  to  be  taken  by  them  in  the  order  of  their 
appropriation  and  if  he  takes  more  into  his  canal  than 
the  purposes  of  his  appropriation  require,  Section  2785 


SUPREME  COURT  DECISIONS  179 

Comp.  Laws  of  Utah  1888  requires  him  to  convey  the 
surplus  again  to  the  natural  channel  or  source  for  the  use 
of  subsequent  appropriators."  In  Becker  v.  Marble 
Creek  Irrigation  Company  the  court  referring  to  the  ap- 
propriator,  said :  "  Cannot  give  away  or  dispose  of  his 
surplus  water  to  the  injury  of  subsequent  appropria- 
tors."  The  court  properly  held  in  the  Riverdale  Bench 
Canal  Company  that  it  could  not  give  the  water  to  the 
Davis  and  Weber  Canal  Company  as  against  the  claims 
of  the  Hooper  and  the  Wilson  Canals. 

CHANGE  OF  USE 

It  occasionally  happens  that  an  appropriator  ap- 
propriates water  for  use  such  as  for  power  purposes  and 
then  desires  to  use  it  for  agriculture,  supplying  the 
power  by  electricity.  In  Big  Cottonwood  Tanner  Ditch 
Company  v.  Shurtliff,  the  Court  said :  "  Moreover,  the 
claimant  may  not  appropriate  the  water  for  one  purpose 
and  then  apply  it,  or  any  part  of  it  for  another  purpose." 

OWNERSHIP   OF  WATER 

It  is  a  common  but  fallacious  opinion  of  many  ap- 
propriators  of  water  that  they  own  the  water.  The  facts 
are  that  they  have  a  right  of  usage  whereas  the  owner- 
ship rests  with  the  public  or  the  State.  In  a  practical 
way,  for  the  user  who  makes  an  economical  and  beneficial 
use  of  the  water  it  does  not  matter  as  to  the  theory.  To 
the  State  and  to  the  wasteful  user  of  water  it  does  matter 
for  if  the  State  owns  the  water  it  can  compel  an  econom- 
ical use.  In  Salt  Lake  City  v.  Salt  Lake  City  Water 
and  Electrical  Power  Company  (25  Utah  456 ;  71  Pac. 
1069),  the  court  said:  "Neither  in  common  law  nor 


180     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

under  the  law  of  appropriation  does  the  appropriator 
own  the  water." 

INTENTION    AND    TIME    IN    APPEOPEIATION 

In  the  appropriation  of  water,  intention  goes  to  the 
very  foundation.  If  it  is  not  intended  to  put  the  water 
to  some  beneficial  use  there  is  no  appropriation.  In  the 
case  of  Hague  v.  Nephi  Irrigation  Company  the  court 
says :  "  No  matter  how  much  water  may  have  been 
diverted,  the  quantity  necessary  for  the  purposes  for 
which  the  appropriation  is  made  and  the  intention  to 
apply  it  without  unnecessary  delay  may  also  appear  in 
order  to  confer  upon  the  appropriator  a  vested  right 
thereto.  If  there  is  no  intention  on  the  part  of  the 
appropriator  to  apply  the  water  to  such  purpose  and 
within  reasonable  time,  there  is  no  valid  appropriation 
and  the  water  remains  subject  to  appropriation  by  others. 
So  where  there  is  more  diverted  than  is  necessary  for  the 
object  of  the  appropriation  there  can  be  no  intention  to 
apply  the  excess  to  a  useful  purpose  and  such  excess  re- 
mains subject  to  appropriation."  (16  Utah  421.) 

In  Kinney's  "  Irrigation,"  paragraph  50  it  is  said : 
"  The  intention  goes  to  the  very  foundation  of  the  act 
of  appropriation  and  must  be  evidenced  by  a  constancy 
or  steadfastness  of  purpose  or  labor  as  is  usual  with  men 
engaged  in  like  enterprises  who  desire  a  speedy  ac- 
complishment of  their  designs.  If  we  concede  that  a 
man  has  a  right  by  mere  priority  to  take  as  much  water 
from  a  running  stream  as  he  chooses  to  be  applied  to 
such  purposes  as  he  pleases  the  question  still  arises  what 
did  he  choose  to  take." 


SUPREME  COURT  DECISIONS  181 


ENLARGING  CANALS 

In  Tanner  v.  Provo  Bench  Canal  and  Irrigation  Com- 
pany, 1911  (121  Pac.  584),  Tanner  desired  to  enlarge 
the  Provo  Bench  Canal  to  convey  water  he  had  filed 
upon  to  the  land  he  desired  to  apply  it  to.  The  irriga- 
tion company  refused  to  grant  him  the  right  to  enlarge 
its  canal.  He  claimed  the  right  under  the  law.  The 
case  was  carried  to  the  Supreme  Court  of  the  United 
States.  From  the  lowest  court  to  the  highest  court 
Tanner's  contention  was  sustained  and  he  was  permitted 
at  his  own  expense  to  enlarge  the  canal  to  carry  the 
additional  water. 

METHOD   OF  APPLICATION   OF  WATER 

In  Nephi  Irrigation  Company  v.  Vickers,  1905,  the 
district  court  of  Juab  County,  the  trial  court,  allowed 
Yickers  one-fourth  of  a  second  foot  continuous  flow  to 
irrigate  thirty  acres.  An  appeal  was  taken  to  the 
Supreme  Court  on  the  ground  that  the  volume  of  water 
awarded  for  the  land  to  be  irrigated  would  be  valueless 
unless  the  ground  was  furrowed.  The  Supreme  Court 
granted  Vickers  eight-tenths  of  a  second  foot  for  ten 
days  each  month.  The  court  said :  "  As  appears  from 
the  proof  the  appellant  applied  the  water  in  an  ordinary 
and  usual  way,  and  he  was  not  bound  to  furrow  his 
land  before  irrigation.  So  long  as  he  uses  the  water 
without  waste  and  in  accordance  with  his  appropriation 
no  one  has  a  right  to  complain  and  under  such  circum- 
stances a  court  cannot  change  his  manner."  (29  Utah 
205;  81  Pac.  144.) 


182     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 


POINT  OF  DIVERSION 

In  the  arid  West  even  where  the  doctrine  of  appropria- 
tion is  accepted  the  question  of  the  point  of  diversion 
is  often  raised.  A  canal  was  built  in  the  early  days  of 
settlement  with  an  intake  low  down  on  the  stream.  For 
many  reasons,  principally  the  bringing  of  additional 
land  under  irrigation,  it  is  often  desirable  to  change  the 
point  of  diversion.  In  the  meantime  perhaps  the  nat- 
ural flow  of  the  stream  has  been  used  for  power  purposes 
and  the  proposed  change  of  the  point  of  diversion  would 
seriously  interfere  with  the  use  of  the  stream  for  power 
purposes.  In  Hague  v.  Nephi  Irrigation  Company, 
April  1,  1898,  the  court  said:  "  Upon  examination,  how- 
ever, it  will  be  found  that  they  all  support  the  doctrine 
above  stated  that  one  who  is  entitled  to  the  use  of  water 
or  a  stream  may  change  the  place  of  diversion  if  the 
rights  of  subsequent  appropriators  are  not  affected  by 
the  change."  (25  Utah  456.) 

In  Salt  Lake  City  v.  Salt  Lake  City  Water  and  Elec- 
trical Power  Company,  April  1,  1903,  it  was  decided 
that  a  power  company  did  have  a  right  to  change. 
"  Manufacturing  enterprises  are  entitled  to  a  secondary 
right  of  use  for  power  purposes  if  it  does  not  work  to 
the  injury  of  the  original  appropriators."  (52  Pac. 
759.) 

In  the  Hague  v.  Nephi  Irrigation  the  point  at  issue 
was  whether  the  canal  company  could  change  the  point 
of  diversion  up  the  stream  to  irrigate  more  land  when 
by  so  doing  it  prevented  the  use  of  the  water  for  power 
purposes  in  the  operation  of  a  flouring  mill.  The  de- 
cision prohibited  the  change  to  the  injury  of  the  mill. 


SUPREME  COURT  DECISIONS  183 


BENEFICIAL  AND  ECONOMIC   USE 

There  is  a  general  idea  among  many  irrigators  that 
they  have  a  right  to  use  as  much  water  as  they  see  fit 
upon  their  land  provided  they  have  used  a  like  amount 
for  many  years.  Some  even  go  so  far  as  to  contend  that 
they  own  the  water  and  are  strictly  within  their  rights  if 
they  restrict  themselves  to  the  amount  appropriated  at 
an  earlier  date  regardless  of  the  number  of  acre  feet 
they  use  upon  their  land  or  the  value  of  the  water  for 
crop  production  even  if  through  such  methods  large 
areas  remain  entirely  without  water,  due  to  needless  ex- 
travagance. There  are  sections  in  the  State  where  as 
high  as  eight  acre-feet  are  used  where  three  would  serve 
the  agricultural  needs  much  better  and  conserve  the 
fertility  of  the  soil  far  greater.  It  is  impossible  for 
many  to  comprehend  that  ownership  and  use  of  water  is 
a  state  problem  and  that  the  irrigator  is  entitled  to  and 
should  be  protected  by  law  in  the  use  of  a  reasonable 
amount  of  water  for  crop  production.  The  supreme 
court  of  the  state  has  considered  the  question  of  the 
duty  of  water  in  a  number  of  cases.  In  Becker  v. 
Marble  Creek  Irrigation  Company  the  court  said :  "  In 
the  arid  regions  water  is  life  and  it  is  too  precious  an 
article  to  be  permitted  to  run  to  waste.  The  great 
weight  of  modern  authority  is  to  the  effect  that  when  an 
appropriator  permits  part  of  the  water  appropriated  to 
run  to  waste,  or  fails  to  use  a  certain  proportion  of  it 
for  some  beneficial  use,  and  his  right  is  limited  to  the 
portion  of  it  for  some  beneficial  use  or  purpose,  he  can 
only  hold  that  part  of  the  water  which  has  been  actually 
applied  to  a  beneficial  use  and  his  right  is  limited  to  the 


184      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

quantity  used.  The  awarding  of  a  priority  in  excess  of 
the  amount  actually  appropriated  for  a  beneficial  use  at 
the  time  is  an  error." 

The  above  case  does  not  touch  on  the  economical  use 
of  irrigation  water  beyond  restricting  waste  water  which 
in  common  use  is  the  water  allowed  to  flow  off  of  the 
land  into  some  channel  where  it  has  no  value  whatever. 

In  the  case  of  Hague  v.  Irrigation  Company,  March 
16,  1898  (16  Utah  421)  in  speaking  of  the  amount  of 
water  that  an  appropriator  may  use  the  court  said :  "  If 
therefore  a  user  who  owns  and  intends  to  irrigate  but 
one  acre  of  land,  diverts  all  the  water  of  a  natural 
stream  which  is  sufficient  to  irrigate  two  acres  he  obtains 
a  right  to  sufficient  water  to  irrigate  his  one  acre  and, 
B.  who  owns  an  acre  may  appropriate  the  excess.  If  in 
this  arid  region  the  law  were  otherwise  it  would  be  a 
menace  to  the  best  interests  of  the  State  as  well  as  to 
its  citizens  because  it  would  enable  a  few  individuals  or 
associations  of  individuals  by  diversion  of  water  in  ex- 
cess of  use  to  greatly  limit  the  area  of  the  public  domain 
which  could  be  cultivated.  No  extravagance  in  the  use 
of  water  was  ever  intended  by  the  enactment  of  the  laws 
relating  to  the  appropriation  and  use  of  water  in  the  arid 
belt  of  the  country.  The  extent  of  the  appropriation  is 
limited,  no  matter  how  much  water  may  have  been 
diverted,  to  the  quantity  necessary  for  the  purposes  for 
which  the  appropriation  is  made  and  the  intention  to 
apply  it  to  some  useful  purposes." 

In  Fuller  et  al  v.  Sharpe  et  al,  1908  (94  Pac.  813), 
the  Supreme  Court  said :  "  It  is  the  settled  policy  in  this 
state,  and  that  of  the  entire  arid  region  as  well,  to  com- 
pel an  economical  use  of  the  waters  of  the  public 


SUPREME  COURT  DECISIONS  185 

streams  and  other  natural  resources."  The  Utah  court 
approving  the  Danberg  case,  81  Fed.  119,  says:  "  There 
must  be  beneficial  use  before  any  protection  can  be  in- 
voked. In  the  appropriation  of  water  there  cannot  be 
any  dog  in  the  manger  business  by  either  party  to  inter- 
fere with  the  rights  of  others,  when  no  beneficial  use  is 
or  can  be  made  by  the  party  causing  such  interference." 

In  the  "  Big  Cottonwood  Tanner  Ditch  Company  v. 
Shurtliff,  Dec.  27,  1916,  the  court  stated:  "It  has  be- 
come an  elementary  doctrine  in  arid  regions  that  no  one 
is  entitled  to  a  greater  quantity  of  water  for  any  par- 
ticular purpose  than  is  reasonably  necessary  to  supply 
the  needs  of  the  claimant  for  the  specified  purpose.  It 
is  true  regardless  of  the  quantity  of  the  water  that  has 
been  used  for  such  purpose  and  the  length  of  time  it 
may  have  been  used."  (164  Pac.  856.) 

The  Utah  Supreme  Court  quotes  and  adopts  the  Ore- 
gon case  known  as  the  Little  Walla  Walla  Irrigation 
Union  v.  Finis  Irrigation  Company,  where  the  Oregon 
Supreme  Court  says :  "  The  actual  amount  of  water 
needed  for  the  use  to  which  it  is  applied  is  the  limit  to 
which  a  party  is  entitled  to  water  for  irrigation,  re- 
gardless of  the  fact  that  he  may  have  actually  diverted 
more  water  for  a  long  period  of  time.  He  (the  claim- 
ant) will  be  restricted  to  the  quantity  of  water  needed 
for  the  purpose  of  irrigation  for  watering  his  stock  and 
for  domestic  use.  No  person  can  by  virtue  of  his  ap- 
propriation acquire  a  right  to  any  more  water  than  is 
necessary  for  the  purpose  of  his  appropriation."  The 
Utah  Court  said :  "  The  courts  also  have  the  power  to 
prevent  a  claimant  from  wasting  water  and  within  limits 
may  prevent  waste  through  the  means  or  channels  that 


186     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  claimant  uses  for  diverting  and  taking  water  from 
the  main  stream  to  the  place  of  use." 

The  Utah  Court  also  cites  and  adopts  the  ruling  of 
Colorado.  In  Town  of  Sterling  v.  Pawnee  D.  E.  Com- 
pany where  the  Colorado  Court  says :  "  The  Law  con- 
templates an  economical  use  of  water.  It  will  not  coun- 
tenance the  diversion  of  a  volume  from  a  stream  which 
hy  reason  of  the  loss  resulting  from  the  appliances  used 
to  convey  it  is  many  times  that  which  is  actually  con- 
sumed at  the  point  where  it  is  utilized.  Water  is  too 
valuable  to  be  wasted  either  through  an  extravagant  ap- 
plication for  the  purpose  appropriated  or  by  waste  re- 
sulting from  the  means  employed  to  carry  it  to  the  place 
of  use,  which  can  be  avoided  by  the  exercise  of  a  reason- 
able degree  of  care  to  prevent  unnecessary  loss  or  loss  of 
a  volume  which  is  greatly  disproportionate  to  that  act- 
ually consumed.  An  appropriator  must  therefore  exer- 
cise a  reasonable  degree  of  care  to  prevent  waste  through 
seepage  and  evaporation  in  conveying  it  to  the  point 
where  it  is  used." 

Going  still  farther  east,  the  Utah  Supreme  Court 
cites  and  adopts  the  ruling  of  the  Nebraska  Supreme 
Court  in  Courthouse  Rock  Irrigation  Company  v. 
Villard,  where  it  says :  "  It  is  an  essential  purpose  of  our 
irrigation  laws  to  require  an  economical  use  of  waters 
of  the  State.  The  plaintiffs  have  an  adjudicated  right 
to  the  use  of  30%  cubic  feet  of  water  to  a  second,  of  the 
waters  of  Pumpkin  Seed  Creek,  so  far  as  they  benefi- 
cially use  the  same ;  but  they  are  not  permitted  to  take 
water  from  the  stream  which  they  cannot  use  or  what 
amounts  to  the  same  thing  they  are  not  entitled  to 
wastefully  divert  water  into  a  canal  which  otherwise 


SUPREME  COURT  DECISIONS  187 

might  serve  a  good  purpose  if  used  by  appropriators  or 
riparian  owners  whose  priorities  are  inferior  or  subse- 
quent to  the  right  of  the  plaintiff."  (75  Nebraska 
411.) 

In  the  case  of  the  Big  Cottonwood  Tanner  Ditch  v. 
Shurtliff,  in  addition  to  his  claim  to  water  to  irrigate 
his  farm  lands  the  defendant  claimed  the  right  to  use 
one-half  of  a  second  foot  of  water  for  culinary  purposes 
and  to  convey  the  same  as  he  had  done  for  19  years  in 
an  open  ditch  with  a  gravelly  foundation  when  a  com- 
petent engineer  from  measurements  established  that 
seventy-five  per  cent,  of  the  water  was  lost  through 
seepage.  The  court  concluding  the  case  said :  "  Neither 
may  they  waste  water  either  by  supplying  more  than  is 
reasonably  necessary  to  supply  their  needs  for  the  pur- 
poses aforesaid.77  Here  the  court  held  that  some  more 
economical  means  than  an  open  gravelly  ditch  would 
have  to  be  provided  to  convey  the  water  to  the  house. 


CHAPTEK  XI 

THIRTY-EIGHT   YEARS    OF    IRRIGATION    LEGISLATION 

1880-1918 

With  the  exception  of  some  few  minor  amendments  to 
the  then  existing  laws,  there  was  no  water  legislation 
from  1880  to  1897.  There  was  much  legal  doubt  as  to 
whether  the  Congressional  Act  creating  the  territory  au- 
thorized the  exercise  of  what  appeared  to  many  as  judi- 
cial power,  in  reference  to  water  rights,  by  the  county 
courts.  This  left  the  work  done  by  these  bodies  always 
in  doubt.  Much  of  it  considering  the  irrigation  knowl- 
edge then  extant  was  splendid  and  far  beyond  the  period. 
Yet  it  was  not  carried  on  as  it  probably  would  have 
been  if  that  fear  had  not  existed.  Nevertheless  the  law 
remained  unaltered  and  so  far  as  the  writer  can  discover 
it  was  never  carried  into  the  courts  for  a  legal  determina- 
tion of  its  validity.  The  outcome  was  that  the  law  of 
1880  continued  in  operation  in  some  counties  until 
statehood. 

The  constitution  of  the  new  state  ignored  the  whole 
question  of  water  rights,  or  the  settlement  of  them  except 
the  reference  made  in  Article  17  Section  1  where  it 
provides :  that  "  All  existing  rights  to  the  use  of  any 
waters  in  this  state  for  any  useful  or  beneficial  purpose 
are  hereby  recognized  and  confirmed."  Such  a  meagre 
provision  neither  added  to  nor  detracted  from  the  con- 
ditions already  existing  and  its  brevity  and  indefinite- 

188 


THIRTY-EIGHT  YEARS  OF  IRRIGATION  LEGISLATION      189 

ness  were  due  probably  to  a  lack  of  unanimity  of  opinion 
in  the  constitutional  convention  and  a  realization  by  that 
body  that  nothing  more  was  possible. 

In  1897  two  laws  were  passed  dealing  with  irrigation 
and  water  rights.  The  first  dealt  with  the  practices  of 
irrigation  and  water  rights  and  their  acquirement  and 
the  other  with  the  creation  of  the  office  of  State  Engineer 
and  its  duties.  With  minor  changes  the  first  law  simply 
followed,  as  far  as  the  use  and  appropriation  of  water 
were  concerned,  the  provisions  already  in  force.  They 
were,  in  the  main,  an  embodiment  of  the  practices  which 
had  grown  up  in  the  territory.  In  brief  they  were  cus- 
toms enacted  into  laws. 

The  old  laws,  already  considered,  empowered  the 
county  court  and  later  the  county  selectmen  to  divide  and 
apportion  the  waters  of  the  various  streams  and  the  other 
sources  and  also  to  adjudicate  and  settle  disputes  arising 
among  the  several  appropriators  of  the  streams.  Not- 
withstanding the  doubts  cast  upon  the  legality  of  this 
provision  it  worked  splendidly.  It  is  admitted  that  the 
work  was  not  accurately  done  but  neither  was  the  avail- 
able data  scientific.  During  the  time  of  their  operation 
and  with  the  facilities  at  hand  perhaps  no  other  body 
could  have  done  as  well  or  better.  At  all  events  hun- 
dreds of  streams  were  divided  and  thousands  of  water 
rights  were  determined  so  accurately  that  up  to  the 
present  time  these  decrees  have  not  been  disturbed. 
Moreover  it  was  an  expeditious  and  inexpensive  method, 
where  the  deciding  body  itself  could  visit  the  stream  and 
the  land,  the  users  could  appear  and  state  their  case,  and 
the  necessary  testimony  could  be  introduced  without  the 
expenses  of  legal  assistance. 


190     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

In  the  early  history  of  the  territory,  the  canals  seldom 
extended  beyond  the  boundaries  of  a  county  but  as  time 
passed  larger  and  longer  canals  were  built  and  some 
modification  in  irrigation  law  became  necessary.  The 
greatest  necessity  was  some  united  control  or  central  au- 
thority for  the  whole  territory.  The  logical  thing  to 
have  done,  under  such  a  necessity,  inasmuch  as  the 
old  system  had  worked  so  well  in  limited  fields,  would 
have  been  to  have  created  a  single  board  with  state  wide 
jurisdiction  similar  in  authority  to  the  old  county  court. 
Instead  of  pursuing  the  policy  of  centralization  and  ap- 
propriating the  rich  experience  of  the  county  courts  the 
whole  problem  of  determining  and  adjudicating  water 
rights  was  turned  over  to  the  civil  courts.  The  courts 
could  not  on  their  own  initiative  proceed  to  determine 
the  water  rights  within  their  several  districts.  They 
had  to  wait  until  some  one  filed  a  complaint  with  the 
court  to  the  effect  that  his  rights  were  being  infringed 
upon  and  then  brought  a  suit  to  determine  the  rights 
at  issue.  At  the  discretion  of  the  courts  all  the  ap- 
propriators  from  the  source  in  question  could  be  cited  to 
appear.  The  court,  however,  had  only  such  information 
in  regards  to  the  facts  as  was  brought  before  it  by  the 
litigants  and  was  well  within  its  rights  in  determining 
only  the  issue  before  it.  This  left  the  whole  future  use 
of  the  waters  of  the  stream  open  to  litigation,  as  soon  as 
some  user  of  water,  not  involved  in  the  previous  litiga- 
tion, desired  to  enter  a  suit.  Moreover  the  court  did 
not  have  before  it  a  body  of  carefully  prepared  scientific 
data  and  often  awarded  to  the  claimants  many  times  the 
amount  of  water  needed  for  economical,  beneficial  irriga- 


THIRTY-EIGHT  YEARS  OF  IRRIGATION  LEGISLATION      191 

tion  or  even  many  times  the  average  flow  of  the  stream. 

The  proper  apportionment  and  distribution  of  irriga- 
tion water  is  more  a  question  of  irrigation  engineering 
and  soil  physics  than  it  is  of  law.  By  this  it  is  not 
meant  that  law  is  not  essential,  hut  if  engineering  and 
soil  data  are  properly  done  it  needs  only  the  simplest 
application  of  rules  of  law  by  an  administrative  board 
and  litigation  would  almost  entirely  disappear.  At 
present  in  the  adjudication  of  water  disputes  the  court 
has  to  depend  upon  the  testimony  of  the  users  which  in 
the  main  is  inaccurate  and  self  interested  or  upon  the 
testimony  of  partisan  employed  engineers.  Many  capa- 
ble exponents  of  irrigation  reform  have  maintained  that 
the  courts  dealing  with  litigation  should  have  attached 
to  them  an  irrigation  engineer  to  make  independent  in- 
vestigation for  the  court. 

From  the  early  settlement  of  the  territory  until  1880, 
the  streams,  lakes,  and  other  water  sources  were  re- 
garded as  public  property.  The  authority  controlling 
the  waters  had  exercised  the  right  to  grant  or  deny  the 
applicant  the  use  of  the  water  applied  for.  Naturally 
in  case  of  a  denial  the  reasons  for  such  a  decision  must 
be  assigned.  The  right  of  an  appeal  against  the  arbi- 
trary exercise  of  this  authority  always  lays  to  the  courts. 
With  the  adoption  of  the  State  Constitution  and  the 
laws  enacted  immediately  following  statehood  the  water 
rights  became  free  for  all  and  the  right  of  use  became 
merely  a  question  of  actual  appropriation  among  the 
several  appropriators.  The  State  was  silent  on  the 
whole  matter.  In  case  of  dispute  the  state  did  not  in- 
terpose to  protect  the  public  waters  but  simply  opened 


192      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  courts  to  decide  disputes  as  between  individuals. 
The  State  did  not  intervene  to  protect  the  rights  of  the 
public,  or  to  protest  against  excessive  or  unreasonable 
grants.  Few  of  the  judges  knew  much  about  irrigation 
and  the  law  was  not  as  well  developed  then  as  it  is  now. 
Consequently  the  district  courts  frequently  granted 
many  times  as  much  water  as  was  essential  to  crop  pro- 
duction. In  fact  so  much  was  frequently  granted  as  to 
be  injurious  to  soil  fertility.  In  order  to  secure  even 
such  unsatisfactory  adjudications  it  was  necessary  to 
employ  attorneys  and  to  enter  into  expensive  litigation. 
In  most  instances  the  courts  merely  apportioned  the 
whole  stream  to  the  various  claimants. 

If  the  new  State  had  assumed  control  over  every 
source  of  water  supply  under  a  more  centralized  organ- 
ization, and,  acting  upon  the  experience  of  the  past  it 
had  investigated  to  see  that  petitions  for  water  were  to 
meet  an  economic  and  beneficial  use,  few  excessive 
grants  would  have  been  made  and  new  users,  if  the 
streams  had  been  properly  measured  as  was  required  by 
the  law  of  1880,  could  have  found  upon  application  to 
the  central  office  whether  there  was  any  unappropriated 
water  in  a  given  stream.  Moreover,  in  too  many  in- 
stances the  court  had  no  sooner  settled  one  case  than 
another  involving  the  same  stream  and  nearly  the  same 
parties  was  begun  because  one  or  more  users  of  the 
stream  had  not  been  made  a  party  to  the  former  suit, 
and  the  State  appeared  to  have  no  interest  in  the  issue. 
It  was  a  distinct  loss  to  the  State  that  the  old  system  had 
not  been  developed  to  meet  the  new  needs  instead  of 
turning  to  another  system  nearly  as  decentralized  and 
even  less  competent  than  the  old  one. 


THIRTY-EIGHT  YEARS  OF  IRRIGATION  LEGISLATION      193 

The  fact  stands  out  that  unlegal  as  they  were  gen- 
erally held  to  be,  that  the  vast  majority  of  all  adjusted 
water  rights  in  the  state  is  the  work  of  the  early  county 
courts  and  the  board  of  county  selectmen.  The  work  in 
many  instances  was  crude,  due  in  the  main  to  the  im- 
possibility of  obtaining  accurate  data.  It  is  over  twenty 
years  since  the  new  system  came  into  operation.  Most 
of  the  cases  it  has  decided  are  a  reaffirmation  of  the  old 
adjudication  but  in  the  main  very  few  of  the  old  settle- 
ments have  been  disturbed  or  even  questioned  which  is 
strong  evidence  that  the  old  system  did  good  work  or 
that  the  new  system  is  very  inefficient. 

As  already  indicated  in  a  previous  chapter,  the  law 
of  1880  made  water  rights  personal  property  at  the  dis- 
cretion of  the  holder.  The  principle  was  continued  by 
the  law  of  1897  and  is  part  of  the  present  water  statutes 
of  the  State. 

The  law  providing  for  the  organization  of  irrigation 
districts  was  repealed  and  a  new  one  was  not  re-enacted 
until  1909. 

A  second  law  passed  at  this  session  (1897)  created 
the  office  of  State  Engineer.  It  was  maintained  at  the 
time  that  the  law  was  passed  primarily  to  aid  in  the 
adjudication  of  water  rights.  If  that  was  its  purpose 
it  has  signally  failed.  From  such  a  statement  it  must 
not  be  assumed  that  it  has  not  made  an  honest  effort  but 
failure  is  due  primarily  to  the  legally  prescribed  methods 
which  have  proved  ineffective. 

The  law  defined  the  duties  of  the  State  Engineer  as 
follows :  "  To  examine  into  and  report  upon  reservoir 
sites  for  the  state  under  the  direction  of  the  state  board 
of  land  commissioners ;  to  submit  plans,  specifications 


194      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

and  estimates  for  the  construction  of  reservoirs,  dams 
and  canals  at  the  request  of  the  board ;  to  supervise  any 
state  reservoir ;  and  to  pass  upon  the  character  and  suffi- 
ciency of  all  other  irrigation  works  that  the  State  has 
an  interest  in." 

In  addition  to  the  foregoing,  the  state  engineer  was 
to  keep  a  full  and  complete  record  of  all  measurements 
of  streams,  but  the  peculiar  part  of  this  is  that  the  law 
did  not  authorize  him  to  make  any  such  measurements. 
Individuals  or  companies  undertaking  to  construct  reser- 
voirs or  dams  except  where  the  dams  were  less  than  ten 
feet  in  height  were  required  to  secure  his  approval. 
The  plans  and  specifications  were  to  be  submitted  to  him 
for  approval  before  the  work  was  begun.  Moreover  as 
the  work  progressed  the  State  Engineer  was  required  to 
inspect  the  structure  for  safety.  When  he  regarded  it 
as  unsafe  he  was  required  to  report  the  actual  condition 
to  the  district  court  and  ask  for  an  order  condemning  it. 
Such  procedure  usually  meant  a  hearing  with  its  at- 
tendant delays.  At  best  it  was  a  cumbersome  process 
to  be  resorted  to  only  in  extreme  oases. 

If  the  law  creating  the  office  of  State  Engineer  is 
looked  upon  as  a  beginning,  even  with  its  small  grant  of 
powers,  it  was  a  step  in  advance.  The  very  creation  of 
the  office  of  a.  state  engineer  is  a  recognition  of  the 
necessity  of  some  central  authority,  to  control  the  waters 
of  the  State.  The  salary  was  fixed  at  one  thousand  dol- 
lars a  year  and  was  small  to  obtain  the  full  time  of  a 
competent  engineer.  Excellent  men  were,  however, 
found  to  serve  even  at  such  low  pay. 

In  1901  a  new  irrigation  law  was  passed.  It  granted 
essentially  increased  powers  to  the  State  Engineer.  It 


THIRTY-EIGHT  YEARS  OF  IRRIGATION  LEGISLATION      195 

gave  him  general  supervision  of  the  waters  of  the  State 
and  the  officers  connected  with  its  distribution.  He  was 
now  authorized  to  measure  the  streams  of  the  state  and 
to  make  surveys  and  collect  data  upon  all  possible  irriga- 
tion canals  and  reservoirs.  When  the  measurements  of 
a  stream  were  made  it  was  required  that  at  the  same 
time  they  were  to  include  the  carrying  capacity  of  all 
canals  diverting  water  from  the  stream.  The  lands 
irrigated  from  the  canals  were  likewise  to  be  measured. 
A  map  of  the  stream  and  diverting  canals  was  to  be 
made  and  kept  on  file  in  the  office  of  the  State  Engineer. 
At  the  same  time  a  copy  was  to  be  filed  with  the  county 
recorder. 

The  county  commissioners  were  directed  to  create  one 
or  more  water  districts  out  of  each  county,  and  to  ap- 
point a  water  commissioner  for  each  district.  The 
duties  of  these  water  commissioners  were  to  measure  and 
to  divide  the  natural  streams  among  the  canals  according 
to  the  prior  rights  of  the  users  and  also  to  employ  all 
necessary  steps  to  conserve  as  far  as  possible  the  natural 
supply  of  water.  In  the  performance  of  their  duties  the 
water  commissioners  were  subject  to  the  control  and 
direction  of  the  State  Engineer.  These  water  commis- 
sioners where  they  were  appointed  found  their  chief 
duties  in  adjusting  water  difficulties  among  the  different 
canals  drawing  water  from  the  same  natural  stream  in 
the  summer  season  when  the  water  was  scarce.  There 
was  no  other  legal  authority  outside  of  the  courts  to  ad- 
just these  petty  difficulties. 

In  the  main  the  provision  for  the  appointment  of 
water  commissioners  did  little  good.  The  appointments 
were  left  to  the  option  of  the  County  Commissioners  and 


196      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

except  when  difficulties  arose  no  appointments  were 
made.  The  chief  motive  for  a  refusal  to  appoint  was  to 
avoid  the  salary  expense  to  the  county  and  later  to  the 
water  users.  When  they  were  appointed  there  was 
little  to  guide  them.  The  fact  that  there  were  disputes 
was  evidence  that  there  had  been  no  adjudications  of 
record  and  consequently  not  much  for  these  men  to  go 
by.  The  commissioner's  chief  function  was  that  of  a 
peace  maker. 

The  law  of  1903,  with  the  addition  of  a  few  new  fea- 
tures, was  a  codification  of  the  existing  laws. 

The  law  of  1903  divides  itself  under  three  main 
heads,  (a)  General  Provisions,  (b)  Duty  and  au- 
thority of  the  State  Engineer,  (c)  Adjudication  of 
water  rights. 

First,  (a)  the  state  constitution  was  silent  as  to  the 
ownership  of  the  waters  of  the  state.  The  law  of  1903 
in  section  47  says :  "  The  water  of  all  streams  and  other 
sources  in  this  state,  whether  flowing  above  or  under  the 
ground  in  known  or  defined  channels  is  hereby  declared 
to  be  the  property  of  the  public,  subject  to  all  existing 
rights  to  the  use  thereof."  An  interpretation  has  not  yet 
been  given  this  section  by  the  court.  Inasmuch,  how- 
ever, as  the  courts  make  a  distinction  between,  "  the 
property  of  the  public  "  and  "  the  property  of  the  State," 
the  former  being  interpreted  merely  as  giving  the  State 
control  while  the  latter  means  State  ownership,  it  would 
have  been  better  to  have  employed  the  latter  term  and  to 
have  made  it  explicit  that  the  State  did  really  own  the 
waters. 

The  other  general  provisions  included  the  acquire- 
ment of  rights  by  appropriation,  a  requirement  that  new 


THIRTY  -EIGHT  YEARS  OF  IRRIGATION  LEGISLATION      197 

appropriators  should  apply  to  the  State  Engineer  for 
permission  to  appropriate,  publication  of  notice  of  ap- 
propriation with  stream  and  location,  priority  of  ap- 
propriation to  be  the  rule  of  use,  right  of  the  owner  to 
declare  water  personal  property,  water  rights  to  be 
transferred  by  deed,  etc.  Dams  holding  over  ten  feet  of 
water  were  subject  to  inspection  by  the  State  Engineer. 

The  second  division  (b)  dealt  with  the  appointment 
of  the  State  Engineer  and  defined  his  powers  and  duties. 
The  State  engineer  was  appointed  by  the  Governor  for 
a  term  of  four  years.  The  salary  was  fixed  at  3000 
dollars  and  the  appointee  was  to  possess  a  theoretical  and 
practical  knowledge  of  irrigation  engineering.  The  new 
law  gave  him  considerable  power.  He  was  to  possess 
general  supervision  over  the  public  waters  of  the  state, 
their  measurements,  apportionments  and  appropriation. 
He  was  empowered  to  make  the  necessary  rules  and 
regulations  pertaining  to  the  same ;  to  carry  out  the 
above  requirements  he  was,  if  not  already  familiar  with 
the  irrigation  needs  of  the  state,  to  become  acquainted 
with  them. 

Perhaps  the  most  important  power  granted  and  duty 
imposed  was  that  he  was  required  to  make  a  complete 
hydrographic  survey  of  each  river  system  and  water 
source  of  the  State,  beginning  with  the  streams  and 
source  most  in  use.  The  data  collected  by  these  surveys 
was  to  be  assembled  to  aid  in  establishing  and  determin- 
ing the  rights  of  the  several  water  users  throughout  the 
State. 

The  unappropriated  waters  were  to  remain  under  his 
supervision  until  they  were  appropriated  according  to 
the  provisions  of  the  law.  Application  for  the  unused 


198      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

waters  of  the  State  were  to  be  made  to  the  State  Engi- 
neer, but  before  he  could  deny  or  approve  an  application 
he  must  advertise  for  thirty  days  in  some  newspaper 
having  general  circulation  within  the  river  system  or 
water  source  where  the  proposed  appropriation  was  to 
be  made.  Protests  can  be  filed  against  such  a  grant. 
When  all  the  evidence  is  before  the  engineer  he  can  grant 
or  deny  the  application.  If  the  applicant  is  not  satis- 
fied he  can  apply  to  the  courts.  The  act  carried  pro- 
visions covering  the  granting  of  an  appeal  to  the  courts 
from  nearly  every  power  granted  the  engineer. 

The  State  was  to  be  divided  into  water  divisions  by 
the  State  Engineer  and  over  each  division  with  the  ap- 
proval of  the  governor  he  was  to  appoint  a  superintend- 
ent. The  districts  were  to  be  further  subdivided  into 
subdivisions.  Over  each  subdivision,  with  the  approval 
of  the  State  Engineer,  the  superintendents  of  the  district 
were  to  enforce  the  State  water  laws  and  regulations  and 
to  exercise  control  over  the  supervisors.  The  super- 
visors were  required  to  divide  the  water  among  the  sev- 
eral canals  from  the  natural  streams  and  to  distribute 
the  flow  among  the  users  from  the  canals.  The  super- 
intendents were  to  be  paid  by  the  State  and  the  super- 
visors by  the  counties  or  users. 

Thirdly  (c),  as  already  pointed  out  the  granting  or 
the  denying  of  water  rights,  the  dividing  and  distribu- 
tion of  the  water  and  the  settling  of  disputes  rising 
among  users  until  1897  were  powers  exercised  by  the 
county  courts  and  county  selectmen.  So  far  as  divided 
authority  could  go  and  the  unscientific  data  permitted 
the  work  was  fairly  well  done.  At  all  events  the  policies 
and  practices  pursued  were  among  the  best  evolved  up 


THIRTY-EIGHT  YEARS  OF  IRRIGATION  LEGISLATION      199 

to  that  date.  As  the  territory  grew  isolated  settlements 
using  only  part  of  the  available  water  supply  became 
thriving  towns  needing  all  of  the  supply.  The  people 
began  to  build  reservoirs  and  construct  canals  that  not 
only  supplied  several  towns  but  more  than  one  county. 
The  local  problem  first  became  a  county  problem  and 
then  a  State  problem.  The  logical  thing  to  have  evolved 
from  the  town  and  the  county  board  of  water  control 
was  a  state  board  of  water  control.  Instead  of  evolving 
such  a  natural  system,  along  the  lines  already  begun  a 
resort  was  had  to  the  old  cumbersome,  unworkable  court 
system  which  had  not  and  has  not  accomplished  anything 
worth  speaking  about  in  Utah. 

The  law  of  1903  tried  to  employ  the  two  ideas,  the 
employment  of  the  State  Engineer  and  his  office  to  col- 
lect data  and  measure  and  control  the  streams  and  the 
district  courts  to  adjudicate  the  water  rights.  The  law 
required  the  State  Engineer,  as  already  indicated,  to 
make  a  hyrographic  survey  of  the  streams  and  water 
source  of  the  State.  In  addition  to  measuring  the  flow 
of  the  water  he  was  to  collect  all  other  data  that  would 
assist  in  determining  the  existing  rights  together  with 
the  rights  of  the  several  canals  and  the  names  of  the 
users  of  the  water  and  the  acreage  to  which  it  applied. 
Correct  maps  showing  the  canals,  streams,  etc.,  were  to 
be  prepared.  When  all  the  information  obtainable  was 
collected  the  State  Engineer  was  required  to  file  it  with 
the  Clerk  of  the  District  Court  of  the  county  in  which 
the  stream  is  located.  When  the  data  is  complete  so  far 
as  the  Engineer's  office  can  make  it,  "  the  court  has 
exclusive  jurisdiction  in  the  determination  of  all  water 
rights  on  the  stream  or  other  source."  The  State  Engi- 


200     DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

neer  can  go  no  farther  and  must  abide  the  pleasure  of 
the  court. 

When  the  information  is  filed  with  the  Clerk  of  the 
court  it  becomes  his  duty  to  file  it  in  proper  books  and 
to  notify  by  registered  letter  all  the  users  whose  names 
are  found  in  the  Engineer's  report.  In  order  to  pro- 
tect the  rights  of  users  who  may  be  overlooked  in  the 
investigation  the  clerk  is  required  to  give  public  notice 
through  some  newspaper  having  general  circulation  in 
that  locality,  so  that  they  can  file  their  claims  before  an 
adjudication  is  made  by  the  court.  If  the  court  acts, 
but  it  usually  ignores  the  whole  matter,  it  is  authorized 
to  take  testimony  in  order  to  reach  a  decision,  disre- 
garding at  its  pleasure,  the  data  collected  by  the  office 
of  the  State  Engineer.  In  simple  terms  the  law  re- 
quires the  State  Engineer  to  make  the  necessary  hydro- 
graphic  surveys,  collect  all  the  available  data,  place  all 
the  information  before  the  court  and  then  allows  the 
court  at  its  pleasure  to  ignore  the  whole  effort  and  to 
leave  the  water  situation  as  it  was  before  the  State  Engi- 
neer made  an  investigation.  Nothing  has  been  accom- 
plished with  this  hybrid  law  and  probably  nothing  will 
be. 

With  the  general  fear  that  the  work  done  prior  to 
statehood,  owing  to  the  failure  to  grant  proper  power  by 
the  territorial  organic  act  to  the  county  courts,  will  not 
stand  the  constitutional  test  few  in  the  state  know  exactly 
the  status  of  their  water  rights.  Thousands  of  dollars 
have  been  spent  by  the  State  for  making  water  rights  in- 
vestigation and  the  data  is  growing  valueless  with  age. 
The  water  users  who  have  had  their  water  rights  de- 
termined are  those  who  have  had  either  to  prosecute  or 


THIRTY-EIGHT  YEARS  OF  IRRIGATION  LEGISLATION      201 

to  defend  them  in  court.  These  decrees  in  many  cases, 
due  to  lack  of  scientific  information,  are  often  very 
faulty. 

Since  1903  there  have  been  a  number  of  minor  amend- 
ments to  the  water  legislation  of  the  state  but  nothing 
fundamental  or  of  major  importance. 

This  situation  is  not  due  in  any  way  to  the  neglect  of 
the  men  who  have  occupied  the  position  of  State  Engi- 
neer. Pour  years  after  statehood  (1900)  Hobert  0. 
Gemmell  called  the  attention  of  the  legislators  to  the 
existing  condition  and  advocated  the  adoption  of  the 
Wyoming  plan  which  had  been  in  operation  in  that  State 
for  ten  years.  In  fact,  he  went  so  far  as  to  draw  a  law 
for  presentation  to  the  legislature  but  nothing  came  of 
it.  The  following  is  a  general  outline  of  his  bill  which 
has  been  endorsed  and  supported  in  general  by  most  of 
the  State  Engineers.  This  is  especially  true  of  State 
Engineer  Caleb  Tanner  in  the  seventh  biennial  report: 

a.  State  Engineer  shall  be  the  one  office  of  water 
record  for  the  whole  state  and  users  of  water  shall  be 
compelled  to  record  their  rights. 

b.  All  persons  or  corporations  desiring  to  appropriate 
water  shall  be  required  to  secure  a  permit  from  the 
Board  of  Control. 

c.  All  county  records  shall  be  transferred  to  it. 

d.  The  State  shall  be  divided  into  four  water  districts 
and   a    superintendent   appointed   to   each   district    to 
regulate  the  water  in  the  district,  subject  to  appeal  to 
the  State  Engineer  and  Board  of  Control. 

e.  State  Engineer  and  district  superintendents  con- 
stitute a  state  board  of  water  control  with  authority  to 
adjudicate  the  rights  to  all  the  public  waters  of  the 


202      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

State,  a  right  of  appeal  to  lie  from  the  board  of  water 
control  to  the  courts. 

f.  The  State  Board  to  make  hydrographic  surveys 
and  measurements  of  all  streams  and  sources  of  water, 
also  of  land  irrigated  by  same  before  adjudicating  water 
rights  upon  it. 

g.  Board  of  water  control  to  divide  districts  into  sub- 
divisions. 

h.  All  appropriations  of  water  for  reservoir  purposes 
to  be  filed  in  the  office  of  State  Engineer. 


CHAPTEE  XII 

THE  BEAR  RIVER  CANAL 

Forty  years  ago  Bear  Eiver  Valley  was  a  sage  brush 
flat  utilized  principally  for  the  grazing  of  cattle  and 
sheep  and  as  a  wild  run  for  jack  rabbits.  To-day  it  is 
one  of  the  richest  and  most  fertile  agricultural  regions 
in  the  great  West.  The  valley  itself  is  located  in  the 
extreme  northern  part  of  the  State  of  Utah  and  com- 
prises an  area  of  about  150,000  acres.  It  is  in  fact  the 
northern  end  of  the  Great  Salt  Lake  Valley  and  lies 
west  of  the  southern  part  of  Cache  Valley.  The  two 
valleys  are  separated  by  a  low  divide  of  the  Wasatch 
Range  of  mountains.  Through  this  divide  known  as 
the  Cache  divide,  Bear  River  has  cut  a  deep  narrow 
gorge  through  which  it  flows.  The  bottom  of  the  gorge 
is  very  rough  and  rocky.  As  Bear  River  Valley  is  con- 
siderably lower  than  Cache  Valley  the  west  end  of  the 
gorge  is  considerably  lower  than  the  east  end  and  the 
flow  of  Bear  River  over  its  rough  bed,  for  a  distance  of 
about  six  miles,  is  one  of  rapids  and  water  falls. 

From  the  standpoint  of  a  solid  foundation  and  rapid 
flow  of  the  stream,  Bear  River,  at  this  particular  place, 
offered  good  opportunities  for  diversion  dams.  The 
sides  of  the  canyon  or  gorge,  however,  are  very  rough, 
being  composed  largely  of  solid  ledges  of  lime  stone. 
Most  of  the  soil  has  been  washed  away  leaving  the  bare 

203 


204      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

rocks.  From  the  nature  of  the  formation  the  building 
of  canals  through  the  canyon  is  a  difficult  piece  of  work. 
In  order  to  raise  the  water  to  the  proper  elevation  for 
irrigation  in  Bear  River  Valley  the  diversion  dam  was 
built  in  Cache  Valley.  Two  canals,  one  on  each  side 
of  the  river,  were  built  through  the  canyon.  It  was 
necessary  in  order  to  keep  the  water  high  enough  to 
build  the  canals  well  up  on  the  sides  of  the  canyon.  In 
many  places  tunnels  for  the  canals  were  blasted  through 
the  lime  stone  ledges.  For  a  large  part  of  the  distance 
the  canals  were  of  masonry  construction,  there  not  being 
sufficient  soil  with  which  to  build  them.  The  whole 
undertaking  was  an  expensive  piece  of  work,  and  wholly 
beyond  the  financial  ability  of  a  cooperative  body  of  poor 
farmers.  If,  however,  the  lands  in  the  Bear  River  Val- 
ley were  to  be  reclaimed  this  was  the  only  source  of 
water  supply  available.  The  first  survey  of  the  project 
was  made  in  1868  but  the  undertaking  proved  of  such 
magnitude  that  the  promoters  realized  the  impossibility 
of  their  undertaking  and  petitioned  the  Congress  of  the 
United  States  for  assistance  to  carry  it  through.  The 
petition  was  denied.  At  that  time  the  thought  of  the 
Federal  Government  aiding  in  the  reclamation  of 
Western  arid  lands  either  by  grants  of  money  or  grants 
of  land  was  distant  from  the  mind  of  Congress.  The 
idea  of  withdrawing  public  lands  from  entry  and  making 
them  subject  to  a  lien  for  water  as  is  done  in  the  Carey 
Act  in  order  to  protect  the  investor  and  builder  of  canals 
from  speculative  land  entrymen  had  not  been  considered. 
As  a  bonus  to  encourage  the  construction  of  the  Union 
Pacific  and  the  Central  Pacific  Railroads,  the  United 
States  Congress  granted  to  them  the  alternate  sections  of 


THE  BEAR  RIVER  CANAL  205 

public  lands  for  twenty  miles  on  each  side  of  the  roads. 
The  two  roads  met  at  Corinne  in  the  Bear  River  Valley 
and  therefore  each  owned  part  of  the  lands  of  the  valley. 
Corinne,  however,  was  an  unsatisfactory  place  for  the 
meeting  of  the  two  great  roads  so  the  Central  Pacific 
purchased  the  short  piece  of  road  from  Ogden  to  Corinne 
and  thereafter  Ogden  became  the  junction  of  the  two 
systems.  This  gave  the  Central  Pacific  railroad  the 
ownership  of  all  the  railroad  lands  of  Bear  River  Valley. 
In  1883  railroad  lands  in  the  valley  amounting  to  45,000 
acres  were  purchased  by  the  Corinne  Mill  Canal  and 
Stock  Company  for  a  sheep  run.  The  leaders  of  the 
corporation  saw  the  possibilities  of  the  country  under 
irrigation  and  had  surveys  made  with  a  view  of  bringing 
out  the  waters  of  Bear  River.  The  plan  was  to  erect  a 
diversion  dam  in  the  bed  of  the  stream  in  Bear  River 
Canyon.  The  rocks  in  some  parts  of  the  river  bed  in 
the  canyon  stood  high  and  it  was  thought  that  these 
could  be  employed  in  the  construction  of  an  inexpensive 
dam  to  divert  the  water  into  a  canal  and  also  to  pro- 
vide power  for  an  electric  power  plant.  It  was,  how- 
ever, soon  realized  that  the  project  was  too  much  for 
the  financial  resources  of  the  Corinne  Mill  Canal  and 
Stock  Company  and  the  officers  of  the  company  began  to 
look  about  for  some  means  of  financing  the  prospect. 
About  this  time  John  R.  Bothwell,  a  promoter,  appeared 
on  the  scene.  He  took  a  trip  over  the  valley,  saw  the 
land  and  inspected  the  source  of  water  supply  and  be- 
came convinced  that  the  project  was  feasible  and  would 
be  profitable.  His  plan  was  to  consolidate  the  land 
owned  by  the  Corinne  Mill  and  Canal  Stock  Company 
and  the  proposed  irrigation  system  into  one  company 


206      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

and  to  sell  the  land  and  water  together  under  one  con- 
tract. The  company  offered  Mr.  Bothwell  one-half  of 
the  proceeds  of  the  sale  of  the  lands  if  he  could  finance 
and  construct  the  canal  system.  Over  twenty  years  had 
elapsed  since  the  petition  was  sent  to  Congress  until  the 
coming  of  Bothwell  and  nothing  had  been  accomplished. 
But  now  success  and  disaster  was  to  follow  each  other 
in  rapid  succession.  So  disastrous  was  the  venture  for 
those  who  furnished  the  capital  that  the  writer  hesitates 
to  chronicle  the  story.  It  is  pathetic  that  a  brilliant  and 
successful  engineering  project  and,  of  recent  years,  an 
unsurpassed  agricultural  and  homemaking  venture 
should  have  meant  a  complete  loss  to  the  poor  men  and 
women  in  Great  Britain  who  furnished  the  capital. 

John  R.  Bothwell  succeeded  in  interesting  the  Jarvis- 
Conklin  Mortgage  and  Trust  Company  of  Kansas  City 
to  underwrite  and  finance  the  new  company.  He  en- 
tered into  the  following  contract  with  the  Mortgage 
Trust  Company : 

CONTRACT 

JUNE  19,  1889. 

Contract  entered  into  between  the  Jarvis-Conklin  Mortgage 
and  Trust  Company  of  the  first  part,  and  John  R.  Bothwell 
of  the  second  part. 

The  second  party  has  this  day  entered  into  an  agreement 
with  Samuel  M.  Jarvis  and  Roland  R.  Conklin  selling  to 
them  a  three-sevenths  interest  in  certain  water  rights,  money, 
bonuses,  land,  contracts,  etc.,  and  agreeing  to  deliver  to  them 
a  certain  amount  of  capital  stock  of  a  corporation  to  be 
formed,  and  it  is  further  agreed  that  if  second  party  keeps 
said  other  contract  as  made  on  his  part  then  the  corporation 
to  be  formed  as  contemplated  by  said  agreement  and  to  be 
known  as  the  Bear  River  Canal  Company,  or  such  other  name 
as  may  be  agreed  upon,  may  and  shall  issue  its  bonds  in  the 


THE  BEAR  KIVER  CANAL  207 

amount  of  $2,000,000  which  bonds  shall  be  secured  by  a 
mortgage  on  all  the  property  rights  and  franchises  of  said 
proposed  corporation. 

Said  bonds  shall  be  purchased  from  time  to  time  as  the 
work  on  the  proposed  canal  progresses  by  the  first  party, 
at  the  price  of  seventy-five  cents  on  the  dollar  of  the  face 
value  thereof;  said  bonds  to  be  payable  both  principal  and 
interest  at  the  office  of  the  first  party  at  Kansas  City, 
Missouri,  twenty  years  after  date  or  at  such  shorter  time  as 
shall  be  agreed  upon,  and  to  bear  interest  at  the  rate  of  seven 
per  cent,  per  annum  payable  semi-annually.  It  being  under- 
stood that  any  interest  which  has  by  the  terms  of  said  bond 
accrued  at  the  time  of  its  purchase  by  the  first  party  shall 
be  credited  on  the  same. 

This  agreement  to  purchase  said  bonds  by  the  first  party 
is  subject  to  two  conditions  only  viz. :  that  the  issue  of  said 
bonds  be  in  every  way  legal  and  valid  and  the  mortgage 
securing  them  a  valid  and  a  first  lien  and  provided  further 
that  in  case  of  a  financial  depression  which  is  unusual, 
making  the  money  market  unusually  close  the  first  party 
shall  not  be  obliged  to  take  any  portion  of  said  bonds  at 
such  time  but  shall  have  further  and  reasonable  time  to  take 
and  pay  for  them. 

JARVIS  CONKLIN  MORTGAGE  TRUST  COMPANY. 
KOLAND  K.  CONKLIN,  Secretary. 
JOHN  R.  BOTHWELL. 

September  25,  1889,  the  Bear  Lake  and  River  Water 
Works  and  Irrigation  Company  was  incorporated  to 
take  over  the  foregoing  contract.  The  capital  stock  was 
fixed  at  $2,100,000  of  which  John  R.  Bothwell  received 
$2,099,000.  So  far  as  can  be  determined  this  was  pure 
promotion  stock  and  the  only  thing  Bothwell  paid  for 
it  was  certain  water  fillings  and  rights  of  way.  It  is 
to  be  assumed  that  Bothwell  kept  his  contract  with  the 
Jarvis-Conklin  Mortgage  Trust  Company  and  trans- 
ferred to  them  a  considerable  portion  of  the.  stock  that 


208      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

they  immediately  came  into  actual  if  only  nominal  con- 
trol. Both  well  soon  disappears  officially  from  the  com- 
pany. A  mortgage  in  favor  of  the  Jarvis-Conklin 
Mortgage  Trust  Company  was  placed  on  the  proposed 
dams,  canals,  etc.,  October  1,  1889  to  secure  the  payment 
of  $2,000,000.  In  June  1891  the  mortgage  was  super- 
seded by  a  trust  deed. 

The  purposes  of  the  company,  as  indicated  by  the 
articles  of  incorporation,  were  "  to  supply  water  for 
domestic,  municipal  and  manufacturing  uses  to  Ogden 
City,  Corinne  City,  Brigham  City,  Bear  River  City  and 
other  cities  and  villages  and  their  inhabitants  and  for 
irrigation  of  land  and  for  all  other  useful  and  beneficial 
purposes."  The  water  to  be  supplied  was  to  be  secured 
from  Ogden  River,  Bear  River,  Bear  Lake  and  reser- 
voirs. For  the  purposes  of  supplying  water  the  com- 
pany was  authorized  to  construct  reservoirs,  canals, 
ditches,  conduits,  dams,  flumes,  etc.  The  bonds  were 
sold  to  secure  capital  for  the  construction  of  the  system. 
They  were  secured  by  a  mortgage  on  the  canals  and  other 
property  of  the  company  and  also  were  underwritten 
by  the  Jarvis-Conklin  Mortgage  Trust  Company.  A 
large  quantity  of  these  bonds  were  issued  and  purchased 
by  the  Quakers  in  Glasgow,  Birmingham  and  New 
Castle,  Great  Britain.  The  bonds  were  the  chief  and 
almost  only  source  of  revenue  of  the  new  company. 

The  engineering  work  was  performed  by  two  men, 
Samuel  Fortier  and  El  wood  Mead,  who  have  since  be- 
come internationally  preeminent  in  irrigation  engineer- 
ing. Mr.  Fortier  was  active  engineer  on  the  work  and 
Mr.  Mead  was  the  consulting  engineer. 

The  plans  provided  for  the  construction  of  a  diversion 


THE  BEAR  KIVER  CANAL  209 

dam  in  the  Bear  Eiver  just  east  of  the  Cache  divide. 

Two  canals  were  to  be  constructed  through  the  can- 
yon, some  six  miles,  one  built  on  the  north  side  of  the 
river  and  one  on  the  south.  They  were  each  fifteen 
feet  wide  and  ten  feet  deep  and  built  of  masonry  or 
tunneled  through  solid  rock.  Each  canal  was  supposed 
to  have  a  capacity  of  1000  second  feet  of  water.  As 
the  canals  left  the  mouth  of  the  canyon  the  one  on  the 
north  side  ran  off  to  the  north  and  west  for  the  pur- 
pose of  supplying  Bear  River  Valley  with  water.  The 
north  and  west  side  offered  the  greatest  opportunity  for 
agricultural  development.  The  canal  on  the  south  of 
the  river  turned  to  the  south  for  the  purpose  of  irri- 
gating the  lands  on  the  east  side  of  the  valley,  and  was 
intended  to  extend  as  far  south  as  Ogden.  The  south 
branch  was  only  partially  completed  and  did  not  extend 
beyond  Deweyville  until  the  Hammond  Interests  ex- 
tended it  in  1903. 

John  R.  Bothwell,  the  first  president  of  the  company, 
made  a  contract  October  16, 1889,  with  William  Garland 
of  Kansas  City  to  build  the  first  twelve  miles  of  the 
canals.  Immediately  upon  the  signing  of  the  contract 
Garland  began  construction.  As  many  as  7000  men 
were  employed  on  the  works  at  one  time.  The  work 
progressed  rapidly  until  December  10,  1889,  when  the 
company  became  delinquent  in  its  payments.  Moreover 
a  dispute  arose  as  to  the  amount  due  on  the  work  com- 
pleted as  the  payments  were  made  upon  the  unit  cost 
basis.  William  Garland  claimed  a  balance  of  $125,000 
the  difference  between  what  the  company  had  paid  him 
and  the  amount  due.  The  company  maintained  that  it 
owed  Garland  only  the  difference  between  $623,310.10 


210      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

and  $544,145.55  or  $79,164.55  plus  interest  upon  the 
same  for  the  time  it  was  past  due.  The  dispute  over 
the  amount  due  arose  from  the  fact  that  the  company's 
engineer  had  made  a  mistake  in  measuring  the  number 
of  cubic  yards  of  earth  and  rock  excavated  by  two  sub- 
contractors. The  sub-contractors  disputed  the  amount, 
took  the  matter  to  the  courts  and  secured  a  judgment 
against  William  Garland  on  the  ground  that  the  engi- 
neer had  erred.  Garland  maintained  that  inasmuch  as 
the  company  had  already  paid  him  for  this  work  ac- 
cording to  the  incorrect  figures  of  the  engineers  that  he 
should  be  allowed  to  amend  his  estimates  to  the  company 
and  receive  payment  on  the  revised  estimates.  He 
held  this  was  especially  true  inasmuch  as  he  was  paid 
by  the  cubic  yard.  In  order  to  protect  his  interest  he 
placed  a  mechanic's  lien  on  the  canal.  The  account 
remaining  unsatisfied,  May  19,  1893,  Garland  began 
suit  on  his  lien  against  the  Bear  Lake  and  Kiver  Water 
Works  and  Irrigation  Company  and  the  Jarvis-Conklin 
Mortgage  Trust  Company  for  the  amount  claimed, 
namely  $125,000.  The  trial  court  sustained  the  lien 
and  gave  judgment  for  $89,551.33.  There  were  three 
points  at  issue: 

(a)  The  amount  due. 

(b)  Whether  a  mechanic's  lien  took  precedence  over  a 
trust  deed  which  had  been  executed  and  filed  before  the 
lien  had  been  placed  on  the  property. 

(c)  Whether  moneys  received  from  the  sale  of  the 
bonds  were  a  trust  fund  for  the  payment  of  the  con- 
struction of  the  dams  and  canals. 

As  already  indicated,  after  hearing  the  evidence  the 
court  gave  judgment  for  $89,551.33. 


THE  BEAR  RIVER  CANAL  211 

The  Bear  Lake  and  River  Water  Works  and  Irriga- 
tion Company  and  the  Jarvis-Conklin  Mortgage  Trust 
Company  maintained  that  the  trust  deed  executed  -  in 
their  behalf  being  prior  in  time  took  precedence  over 
the  mechanic's  lien.  Chief  Justice  Zane,  of  the  terri- 
torial Supreme  Court,  in  an  opinion  afterward  con- 
firmed by  the  Supreme  Court  of  the  United  States  said : 
"  Under  the  mechanic's  lien  law  relied  upon  we  do  not 
think  a  man  can  execute  a  deed  of  trust  on  a  canal  to 
be  constructed  on  the  public  lands  and  then  employ  men 
to  build  it,  and  after  they  have  done  so  and  claim  the 
security  of  the  lien  turn  upon  them  and  say  he  had 
transferred  the  property  to  a  trustee  before  their  labor 
had  brought  it  into  existence." 

Garland,  in  his  third  contention,  maintained  that  the 
company  had  been  organized  without  any  assets,  except 
certain  water  filings  and  claims  in  rights  of  way;  that 
the  stocks  of  the  corporations  were  valueless  as  far  as 
representing  any  real  investment;  and  that  the  funds 
derived  from  the  sale  of  bonds  was  a  trust  fund  reserved 
for  the  payment  of  the  construction  charges  of  the 
canals,  dams,  etc.,  and  that  Jarvis  and  Conklin  instead 
of  treating  them  as  such  had  used  them  to  purchase  9,000 
acres  of  land  they  held  in  their  own  names.  This  they 
did  not  deny  but  they  contended  that  the  funds  were  not 
held  in  trust  but  were  company  moneys  which  could  be 
used  as  the  officers  of  the  company  saw  fit.  The  court 
did  not  express  itself  on  this  point. 

William  Garland's  claim  was  protected  by  the  legality 
and  priority  of  his  lien  as  upheld  from  the  trial  court 
to  the  Supreme  Court  of  the  United  States.  In  addi- 
tion to  the  difficulties  with  Garland  the  Canal  Company 


212      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

was  in  general  financial  distress.  The  payments  of  in- 
terest on  the  bonds  was  delinquent  and  the  system  was 
not  earning  enough  to  pay  running  expenses.  The  prob- 
lem had  not  worked  out  as  it  had  been  planned.  The 
lands  of  the  Corinne  Mill  Canal  and  Stock  Company 
were  not  selling  well.  The  public  lands,  in  part  at  least, 
were  held  by  speculators  and  they  were  not  buying  water 
rights  but  simply  holding  their  lands  with  a  view  of 
selling  them  at  an  enhanced  value  which  resulted  simply 
from  the  fact  that  water  was  available ;  others  honestly 
felt  that  the  annual  charge  of  two  dollars  an  acre  for 
maintenance  and  operation  was  too  high  and  would  not 
buy  water ;  some  few  held  off  no  doubt  in  the  hope  that 
if  the  company  failed  they  could  buy  the  water  cheaper. 
As  a  result  water  for  only  about  12,000  to  14,000  acres 
had  been  sold,  and  in  this  critical  condition  a  receiver 
was  appointed,  June  6,  1893.  The  same  year  the  finan- 
cial crisis  bankrupted  Jarvis-Conklin  Mortgage  Trust 
Company  making  its  underwriting  of  the  bonds  value- 
less. 

If  the  canal  system  was  not  to  result  in  a  total  loss, 
something  had  to  be  done  and  reorganization  was  de- 
cided upon.  If  matters  could  be  adjusted  with  the 
bond  holders  the  situation  might  be  saved.  Reorgan- 
ization was  thought  of  and  W.  H.  Rowe,  a  business  man 
of  Salt  Lake  City,  was  proposed  for  president  and  gen- 
eral manager  of  the  company.  Messrs.  Rowe,  Conklin 
and  Jarvis  went  to  Great  Britain  to  meet  the  bond 
holders;  to  seek  their  consent  to  a  reorganization;  and, 
if  possible,  to  get  them  to  advance  $125,000  additional 
money  to  complete  a  greater  canal  mileage.  They  se- 
cured the  consent  of  the  bond  holders  to  a  reorganization 


THE  BEAR  RIVER  CANAL  213 

of  the  company  and  sold  them  $125,000  of  new 
bonds. 

On  September  1,  1894,  the  company  was  reorganized, 
with  W.  H.  Rowe  of  Salt  Lake  City  as  president  and 
general  manager,  under  the  name  of  the  Bear  Eiver 
Irrigation  and  Ogden  Water  Works  Company.  The 
Ogden  City  Water  Works  had  been  previously  purchased 
by  the  old  company.  The  capital  of  the  new  company 
was  fixed  at  $2,400,000  to  be  paid  for  in  the  property 
of  the  Bear  Lake  and  River  Water  Works  and  Irrigation 
Company.  Thomas  J.  Flannelly,  an  agent  of  the 
Jarvis-Conklin  Mortgage  Trust  Company,  became  a 
stockholder  in  the  new  company  to  the  amount  of  $2,- 
399,200.  William  Garland's  claim  still  retained  a  lien 
on  the  canal  property. 

The  new  company  formed  a  combination  with  the 
Corinne  Mill  and  Canal  Stock  Company,  the  owner  of 
the  45,000  acres  of  land.  A  very  serious  effort  was 
made  to  sell  the  water  and  the  land  together  for  thirty 
dollars  an  acre,  one-tenth  down  and  the  remainder  in 
ten  equal  annual  installments  with  an  annual  interest 
charge  of  seven  per  cent,  upon  deferred  payments.  An- 
other scheme,  to  sell  the  land  in  tracts  of  twenty  acres 
with  a  perpetual  water  right  of  one  second  foot  for  80 
acres  and  to  plant  the  land  into  apple  trees  and  to  culti- 
vate them  for  six  years  at  an  annual  charge  of  $36  an 
acre,  was  promoted  at  the  same  time.  At  the  end  of  that 
time  the  company  would  turn  over  to  the  purchaser  a 
bearing  orchard.  To  further  assist  the  operation  and 
maintenance  charge  was  reduced  from  two  to  one  dollar 
an  acre. 

About  $80,000  was  spent  in  advertising  these  lands, 


214     DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

principally  in  Illinois,  and  this  brought  to  the  valley  a 
capable  thrifty  class  of  farmers. 

During  the  life  of  the  Bear  Lake  and  River  Water 
Works  and  Irrigation  Company,  water  rights  had  been 
sold  to  a  large  number  of  farmers.  When  the  fore- 
closure of  the  company  caused  a  reorganization  and  the 
failure  of  the  Jarvis-Conklin  Mortgage  Trust  Company 
made  the  underwriting  of  the  bonds  valueless,  the  bond 
holders  were  left  wholly  dependent  upon  the  canals  and 
lands  of  the  irrigation  company  for  security.  In  order 
to  look  into  the  situation  a  representative  of  the  bond 
holders  came  to  the  valley  and  while  there  was  unwise 
enough  to  announce  publicly  that  the  foreclosure  of  the 
old  canal  company  had  cancelled  all  the  water  contracts 
with  the  farmers  and  forfeited  all  moneys  paid  on  them. 
This  stirred  up  a  veritable  hornet's  nest  among  the  farm- 
ers. It  was  most  unwise  if  the  company  was  to  interest 
new  settlers,  for  if  farmers  through  a  simple  process  of 
reorganization  were  to  be  deprived  of  their  irrigation 
water  rights  what  security  was  there  for  future  pur- 
chasers of  water  rights  under  a  system  already  again 
financially  embarrassed  for  the  second  time?  The 
urgent  need  at  that  particular  moment  was  more  settlers 
and  purchasers  of  land.  Without  them  the  project 
could  not  succeed  and  with  such  a  situation  confronting 
them  settlers  would  not  come.  The  farmers  already  on 
the  project  immediately  organized  a  protective  associa- 
tion and  began  litigation  to  protect  their  acquired  rights. 

It  is  useless  to  attempt,  at  this  date,  to  follow  the  in- 
terminable series  of  law  suits  between  the  sub-contractors 
against  the  contractors,  and  the  contractors  against  the 
company,  and  the  land  holders  against  everybody.  Con- 


THE  BEAR  KIVER  CANAL  215 

tests  continued  until  there  was  created  a  veritable  maze 
of  legal  complications  as  between  law  suits,  liens,  re- 
ceivers and  fundamental  rights.  The  outcome  of  the 
situation  was  that  the  farmers  ceased  to  pay  their  annual 
dues  for  land  or  water,  simply  holding  their  contracts  in 
abeyance,  and  the  revenues  of  the  company  were  shut  off. 

During  all  this  time,  William  Garland  was  patiently 
waiting  with  the  thought  that  his  comparatively  small 
claim  would  be  paid.  He  even  offered  to  settle  for 
$75,000.  Finally  it  was  necessary  to  sell  that  part  of 
the  canal  covered  by  the  lien,  in  order  to  settle  the 
judgment.  It  was  put  up  at  auction  and  sold  to  Evans 
and  Dooley  of  Ogden  and  Salt  Lake  for  $125,000. 

Due  to  the  foreclosure  and  organizations  and  reorgan- 
izations of  the  system  was  now  broken  into  three  parts. 
The  part  of  the  system  east  of  Point  Lookout  was  owned 
by  Evans  and  Dooley;  the  old  Corinne  Mill  Canal  and 
Stock  Company  by  the  Hammond  Interests;  and  the 
Roweville  canal  by  the  bond  holders.  As  soon  as  this 
situation  developed  another  law  suit  was  begun  to  de- 
termine their  respective  rights.  This  litigation  con- 
tinued for  five  years.  In  the  meantime  the  farmers  en- 
joyed the  use  of  the  water  without  any  payments. 

In  1902  the  Utah-Idaho  Sugar  Company  bought  the 
canal  system  for  $300,000  and  the  land  for  $150,000. 
The  bond  holders  through  the  old  company  had  entered 
into  contracts  to  sell  water  to  the  farmers.  They  were 
unable  to  keep  the  contracts  because  of  the  loss  of  part 
of  the  canal  system.  The  bond  holders  still  being  par- 
ties to  the  water  contracts  and  the  farmers  insisted  that 
they  be  fulfilled.  The  sugar  company  now  relieved  the 
situation  by  offering  to  sell  water  to  the  bond  holders 


216      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

for  a  nominal  sum  if  they  would  keep  their  contracts 
and  sell  it  to  the  farmers.  These  terms  were  accepted 
by  the  bond  holders  and  they  completed  their  agree- 
ments with  the. farmers. 

Since  the  purchase  of  the  system  by  the  Utah-Idaho 
Sugar  Company,  in  order  to  develop  the  valley,  the  com- 
pany has  sold  water  at  from  $15  to  $50  an  acre. 

Under  the  North  and  South  canals  there  are  now 
about  45,000  acres  under  irrigation  and  cultivation 
while  the  two  systems  are  capable  of  supplying  water 
to  from  90,000  to  100,000  acres. 

The  system  cost  well  over  a  million  and  a  quarter 
dollars.  In  addition  to  this,  in  the  numerous  law  suits 
and  years  of  long  drawn  out  litigation,  there  was  con- 
siderable money  wasted.  The  bondholders  were  the 
heavy  losers.  They  lost  almost  their  entire  investment. 
A  combination  of  circumstances  seemed  to  make  it  im- 
possible for  them  to  realize  the  legitimate  returns  that 
they  were  honestly  entitled  to.  For  they  had  supplied 
the  funds  to  establish  what  later  proved  to  be  a  highly 
profitable  enterprise.  From  the  standpoint  of  water 
supply,  engineering  construction  and  fertile  agricultural 
lands  the  opportunities  were  unsurpassed.  Then  why 
should  it  have  failed  to  bring  returns ;  first  the  company 
was  organized  on  a  highly  speculative  basis,  all  the  stock 
and  one-fourth  of  the  issue  of  the  bonds  went  to  the  pro- 
moters. That  was  certainly  a  considerable  amount  of 
"  water "  to  put  into  a  company  of  that  size  in  the 
hope  that  it  would  survive  and  prosper.  Secondly,  in 
the  beginning  none  of  the  lands  to  be  irrigated  be- 
longed to  the  canal  company  and  more  than  fifty  per 
cent,  of  the  lands  were  in  private  ownership.  Of  the 


THE  BEAR  KIVER  CANAL  217 

privately  owned  lands  45,000  acres  belonged  to  the 
Corinne  Mill  Canal  and  Stock  Company.  Public  lands 
or  public  lands  entered  by  settlers  were  likewise  under 
no  obligation  to  purchase  water.  In  other  words  after 
the  canals  were  built  there  was  no  assurance  that  settlers 
on  the  public  lands  or  purchasers  of  private  lands  would, 
for  years,  buy  water  rights  and  as  a  matter  of  fact  they 
did  not.  Many  had  secured  the  land  merely  to  specu- 
late upon  it.  Every  year  the  company  had  to  wait  it 
was  losing  heavily  in  cost  of  maintenance  and  operating 
expenses,  interest  and  depreciation.  There  was  posi- 
tively no  way  to  overcome  this.  If  the  public  lands 
could  have  been  segregated  and  set  aside  as  in  the  Carey 
Act  where  the  water  charge  becomes  a  lien  upon  the 
land  it  would  have  been  a  great  help  but  there  was  no 
law  to  make  such  an  arrangement  possible.  Looked  at 
candidly  from  every  point  of  view  it  is  impossible  to  see 
how  the  investors  could  have  been  protected  against  loss. 
It  is  certainly  a  pathetic  financial  story. 

To-day  the  canals  supply  water  to  many  acres  of  rich 
agricultural  lands  that  sell  as  high  as  $250  an  acre. 
Thriving  towns  and  villages  and  sugar  factories  have 
been  built  upon  the  improved  lands  under  the  canals. 
The  orchards  as  a  rule  did  not  prove  financially  success- 
ful and  have,  in  many  instances,  been  pulled  out 
and  supplanted  by  alfalfa  and  sugar  beet.  Hundreds 
of  farm  families  are  deriving  support  from  these  re- 
claimed lands  and  thousands  of  inhabitants  are  happy 
and  contented  and  prosperous  through  the  returns  from 
them.  These  things  make  still  more  pathetic  the  fact 
that  the  poor  men  and  women  who  brought  this  all 
about  should  be  the  losers. 


218      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  story  of  this  undertaking  has  not  been  given  be- 
cause of  its  real  value.  It  was,  however,  the  first  large 
commercial  irrigation  undertaking  in  Utah  and  one  of 
the  first  in  the  West.  It  is  typical  of  many  irrigation 
schemes  in  the  arid  West,  and  shows  how  financially  dis- 
astrous an  irrigation  scheme  may  be  when  uncontrolled 
by  the  State  or  the  Federal  Government. 


CHAPTER  XIII 

STATE  IRRIGATION  PROJECTS  AND   STATE  ASSISTANCE  OF 
PRIVATE    PROJECTS 

Prom  the  first  settlement  of  the  commonwealth,  the 
cities,  the  counties  and  the  territory  have  extended  aid 
in  the  construction  of  irrigation  canals  and  ditches.  It 
was  only  natural,  then,  that  the  territory,  on  seeking 
admission  into  the  Union  as  a  State,  should,  among  its 
other  requests,  ask  for  a  grant  of  land  for  the  promo- 
tion and  assistance  of  irrigation. 

In  accordance  with  such  a  desire,  strongly  expressed, 
Section  12  of  the  Enabling  Act  admitting  Utah  to  state- 
hood embodied  the  following  provision :  "  For  the  es- 
tablishment of  permanent  reservoirs  for  irrigation  pur- 
poses five  hundred  thousand  acres  to  be  selected  under 
the  direction  of  the  Secretary  of  the  Interior  from  the 
unappropriated  public  lands  of  the  United  States 
in  the  State  of  Utah."  These  lands  were  to  be 
sold  by  the  state  authorities  and  the  funds  de- 
rived from  them  used  to  build  reservoirs.  There 
has  been  sold  up  to  date  485,607  acres  for  $819,- 
110.  By  an  act,  dated  March  11,  1897,  the  legislature 
created  a  reservoir  fund  to  which  should  be  credited  all 
moneys  derived  from  the  sale  of  the  lands  included  in 
the  special  grant.  The  fund  was  placed  in  charge  of 
the  State  Board  of  Land  Commissioners  to  be  expended 

219 


220      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

for  the  construction  of  permanent  reservoirs.  The  law 
further  provided  that  structures  built  in  whole  or  in  part 
by  this  fund  should  be  under  the  supervision  of  a  com- 
petent engineer  appointed  by  the  land  board.  This 
provision  was  amended  in  1901  placing  the  supervision 
under  the  direction  of  the  office  of  the  State  Engineer. 
The  actual  construction  work  was  to  be  done  by  the  State 
or  by  private  contractors.  Where  the  work  was  done  by 
private  contracts  they  were  based  upon  competitive  bids. 
Both  methods  were  employed  in  the  two  state  reservoirs 
built. 

In  1897,  very  little  of  the  lands  belonging  to  the  State 
Reservoir  Grant  had  been  sold,  so  there  was  at  that  time 
only  a  very  small  amount  of  money  in  the  fund.  It 
was  also  realized  that  if  these  lands  were  to  be  sold  on 
the  same  basis  as  other  state  land,  as  to  length  of  time 
of  payment,  that  the  returns  would  be  slow  coming  in 
and  a  considerable  period  would  elapse  before  the  fund 
would  be  large  enough  to  do  anything.  For  purchasers 
of  state  lands  were  given  ten  years  to  pay  for  the  lands 
in  ten  equal  annual  payments. 

In  order  to  make  funds  available,  a  law  was  passed  in 
1897  authorizing  the  land  board  to  invest  its  funds  in 
warrants  of  the  reservoir  fund  at  five  per  cent,  interest. 
To  make  it  possible  for  the  land  board  to  act  upon  any 
good  opportunity,  the  sum  of  five  hundred  thousand 
was  appropriated  from  the  reservoir  fund  for  the  con- 
struction of  reservoirs  and  canals. 

The  law  of  1897  had  authorized  the  land  board  to 
use  the  reservoir  funds  to  construct  canals  and  reser- 
voirs, but  in  1905  the  board  was  also  empowered  to  loan 
the  funds  derived  from  the  reservoir  land  grants  to 


STATE  IRRIGATION  PROJECTS  221 

"  corporations  or  associations  within  the  State  for  the 
construction  of  public  or  private  reservoirs  at  not  to 
exceed  five  per  cent,  interest."  All  loans  must  be  first 
liens  and  must  not  exceed  forty  per  cent,  of  the  cash 
value  of  the  land  and  the  water  rights.  In  the  first 
law  the  board  could  only  build  reservoirs  to  supply  water 
to  publicly  owned  lands  but  by  the  new  law  it  was  per- 
mitted to  sell  water  to  privately  owned  lands.  This  was 
an  essential  amendment,  for  title  had  been  already  ac- 
quired to  much  of  the  dry  lands  for  ranching  or  dry- 
farming  purposes.  There  were  considerable  quantities 
of  these  lands  in  some  places,  some  of  them  were 
very  valuable  and  in  order  to  make  almost  any  pro- 
ject financially  successful  either  water  would  have 
to  be  sold  to  the  owners  of  the  land  or  else  the 
lands  would  have  to  be  purchased,  water  supplied  to 
them,  and  then  resold.  It  was  much  simpler  to  amend 
the  law  and  sell  the  water  direct  to  the  present  owners 
who  were  anxious  in  most  instances  to  buy  it. 

The  law  of  1913  laid  down  the  principle  upon  which 
water  under  state  projects  should  be  sold.  The  law 
reads :  "  The  charges  shall  be  determined  with  a  view 
of  returning  to  the  reservoir  fund  the  cost  of  construc- 
tion of  the  project  with  interest  at  the  rate  of  five  per 
cent,  per  annum  computed  from  the  date  of  the  comple- 
tion of  the  project."  The  working  out  of  this  principle 
will  be  considered  when  we  come  to  the  sale  of  lands  un- 
der the  Piute  project.  A  further  provision  was  incor- 
porated in  the  law  to  the  effect  that  the  sale  of  water  to 
owners  of  private  lands,  could  only  be  made  upon  writ- 
ten contracts  entered  into  before  work  was  begun  upon 
the  water  system.  The  necessity  of  this  course  is  clear. 


222      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

If  the  reservoir  and  canals  were  first  built  it  would  be 
a  case  of  fixed  capital  which  would  be  valueless  for  any 
other  purpose  competing  for  business.  The  land  own- 
ers could  go  on  as  they  had  done  in  the  past  until 
the  irrigation  system  was  bankrupt  and  they  could  then 
buy  it  at  their  own  price.  It  is  clear  that  the  reservoir 
and  canals  could  not  be  moved  or  used  for  any  pur- 
pose except  to  irrigate  the  land  for  which  it  was  built, 
so  this  is  certainly  a  wise  provision. 

The  original  provision  fixed  ten  years  as  the  length  of 
time  for  the  payment  of  the  purchase  price  of  the  land. 
The  total  sum  was  to  be  divided  into  ten  equal  install- 
ments one-tenth  payable  annually.  It  does  not  appear 
that  there  was  any  particular  reason  why  the  period 
of  ten  years  was  agreed  upon  except  that  the  United 
States  Reclamation  Act  had  adopted  this  time  period  for 
the  payments  of  water  rights  purchased  from  the  Gov- 
ernment. The  period  is  totally  inadequate,  if  it  is 
intended  that  the  lands  are  opened  up  and  made  avail- 
able for  homes  for  poor  men.  The  water  and  land  under 
an  irrigation  project  costs  from  thirty-five  to  seventy 
dollars  an  acre.  Plowing,  levelling  and  breaking  cost 
from  twenty  dollars  an  acre  up.  In  some  instances  it 
even  reaches  fifty  or  sixty  dollars.  In  addition  settlers, 
in  many  projects,  have  to  build  laterals  themselves, 
When  we  consider  that  the  expense  of  clearing  the  sage 
and  breaking  up  the  land ;  leveling  it  so  the  water  will 
flow  over  it ;  and  fencing  the  farm  to  protect  the  crops 
from  range  cattle  all  has  to  be  done  before  a  crop  can 
be  produced  it  can  readily  be  seen  that  there  is  little 
hopes  of  any  income  worth  speaking  of  before  the  third 
year.  In  the  meantime  a  house  has  to  be  built  for  the 


STATE  IRRIGATION  PROJECTS  223 

family  and  some  outbuildings  for  livestock.  The  effort 
required  to  put  the  farm  on  a  producing  basis  is  more 
than  the  ordinary  individual  without  capital  can  accom- 
plish. Payments  for  water  should  be  suspended  for  the 
first  few  years  and  then  the  period  of  payment  should 
be  considerably  lengthened.  Because  the  raw  land  is 
sold  for  a  nominal  price  per  acre  the  word  has  gone  out 
that  there  are  free  farms  for  the  asking,  but  it  takes 
a  well-to-do-man  to  develop  one  of  these  free  farms  and 
at  the  same  time  support  a  family.  It  is  also  well  to 
remember  that  it  will  be  only  a  few  years  before  the 
products  from  these  lands  will  be  necessary  for  the 
national  support.  So  that  either  the  State  or  the  Fed- 
eral Government  will  have  to  make  provisions  such  that 
a  man  who  enters  such  lands  can  make  an  adequate  liv- 
ing and  establish  a  home.  It  is  the  poor  men  who  will 
have  to  do  this  work  for  well-to-do-men  do  not  need  to 
undertake  the  task.  If  well-to-do-men  desire  to  farm 
they  can  purchase  lands  already  well  tilled.  Due  to  the 
foregoing  conditions  it  was  soon  found  that  the  settlers 
in  the  Utah  state  projects  could  not  make  the  earlier 
payments  which,  as  already  indicated,  came  due  be- 
fore the  land  was  producing  crops.  In  1913  authority 
was  given  the  State  Land  Board  to  lengthen  the  time 
of  payments  "  when  the  interests  of  the  State  and  the 
successful  development  and  colonization  of  the  land,  re- 
quire such  action  to  abate  payments  of  interest  due  from 
purchases  of  land  and  water  or  either  of  them;  or  to 
extend  the  time  of  payments  on  principal  and  interest 
due  or  about  to  become  due  with  or  without  interest 
upon  such  terms  and  conditions  as  to  the  board  shall 
seem  just."  This  was  a  recognition  by  the  legislature 


224      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

of  the  impossibility  of  meeting  the  conditions  of  sale  of 
the  land  and  water. 

There  was  a  public  demand  for  reservoir  construction 
and  soon  after  statehood  the  legislature  set  aside  a  spec- 
ial fund  for  the  land  board  to  visit  the  different  parts 
of  the  State  to  examine  reservoir  sites.  In  conjunction 
with  the  State  Engineer  several  sites  were  examined  and 
finally  two  were  selected,  the  Hatch  town  and  the  Piute. 

In  the  annual  report  of  1906,  the  State  Land  Board 
sets  forth  that  after  careful  examination  they  were 
very  favorably  impressed  with  the  lands,  the  water 
supply,  the  dam  site  and  the  canal  lines  of  the  Hatch- 
town  project  in  Garfield  County.  Following  this 
thought  on  May  2,  1906,  an  option  was  taken  upon  the 
property  and  rights  of  the  Upper  Sevier  Reservoir  Irri- 
gation and  Fish  Stock  Company.  The  sum  to  be  paid 
for  the  lands  and  water  rights  was  $5380.  As  soon  as 
an  option  to  purchase  was  taken  a  more  thorough  exam- 
ination was  made  of  the  site,  a  dam  was  designed  and 
specifications  prepared  and  bids  called  for.  The  con- 
tract was  let  July  18,  1907.  With  some  delays  the 
work  on  the  dam  and  canals  was  carried  on  until 
they  were  completed  on  Nov.  30,  1908. 

The  elevation  of  the  lands  it  was  proposed  to  irrigate 
by  the  Hatchtown  project  was  about  7,000  feet.  The 
reservoir  had  a  capacity  of  13,500  acre  feet  and  was 
designed  to  water  about  6,000  acres.  The  total  cost  of 
the  dam  and  the  twenty  miles  of  canal  was  $178,000. 
The  price  of  land  without  water  was  fixed  at  $2.50  an 
acre  and  with  water  the  price  varied  from  thirty  to 
thirty-five  dollars  an  acre.  The  unit  of  sale  was  forty 
acres  and  where  the  unit  was  susceptible  of  only  partial 


STATE  IRRIGATION  PROJECTS  225 

irrigation,  due  to  being  above  the  canal  or  water  line 
a  charge  for  water  was  made  for  only  that  part  of  the 
land  that  could  be  irrigated.  The  initial  payments  upon 
dry  lands  were  twenty-five  cents  and  for  irrigated  lands 
one  dollar  an  acre  at  the  time  of  purchase.  On  the  next 
succeeding  January,  the  settler  was  required  to  pay 
one-tenth  of  the  total  purchase  price  of  land  and 
water  and  on  the  first  of  each  succeeding  year 
one-tenth  of  the  original  cost  together  with  five 
per  cent,  interest  upon  the  deferred  payments  un- 
til the  entire  sum  was  paid.  The  maximum  acre- 
age sold  to  any  one  purchaser  was  limited  to 
one  hundred  and  sixty  acres.  In  addition  to  the  items 
already  set  out  there  was  a  maintenance  and  operation 
charge  for  the  upkeep  of  the  system. 

The  extension  of  payments  and  other  favorable  con- 
ditions made  the  project  bid  fair  to  become  a  splendid 
success.  About  eighty  per  cent,  of  the  lands  had  been 
sold  and  was  either  under  cultivation  or  were  being 
rapidly  put  under  cultivation,  when  on  May  25,  1914, 
the  dam  gave  way  and  was  washed  entirely  out. 

Various  reasons  were  given  by  different  engineers  for 
its  failure.  The  significant  thing  to  the  State,  how- 
ever, was  that  the  dam  was  completely  destroyed  and 
the  money  expended  upon  it  was  entirely  lost.  Finally 
after  several  investigations  by  experts  the  authorities 
have  decided  not  to  rebuild  the  dam  because  of  a  poor 
foundation.  At  the  last  legislative  session,  1919,  a  set- 
tlement was  made  with  the  purchasers  of  the  land  in 
consequence  of  their  loss,  through  a  failure  of  the  State 
to  supply  water,  according  to  its  contracts. 

Prior  to  1905,  citizens  of  Sevier  Valley  had  taken 


226      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

steps  to  build  a  dam  and  store  water  on  the  Sevier 
River  about  ten  miles  from  Marysvale.  The  stored 
water  was  intended  to  be  used  to  supplement  the  then 
existing  supply  of  the  valley  and  to  irrigate  a  tract  of 
new  land  in  addition.  The  farmers  of  the  valley  inter- 
ested in  the  new  venture  organized  the  Otter  Creek 
Reservoir  Company.  In  August  1907  the  company  pro- 
posed to  the  State  Land  Board  that  it  take  over  the  pro- 
ject on  the  basis  that  the  State  compensate  the  company 
on  the  actual  outlay  which  was  very  small.  An  option 
to  purchase  was  first  agreed  upon,  after  which  the 
State  Engineer's  office  began  a  careful  investigation  of 
the  natural  conditions,  water  supply  and  bed  rock  in 
order  to  determine  whether  a  reservoir  at  this  point 
was  possible.  An  affirmative  decision  at  the  conclusion 
of  the  investigation,  led  to  the  purchase  of  all  the  rights 
of  the  Otter  Creek  Irrigation  Company.  The  company 
was  paid  $542.  The  proposed  reservoir  would  flood 
2174  acres  of  land  of  which  1823  acres  were  in  private 
ownership.  These  lands  were  bought  at  a  cost  of 
$35,000.  The  work  on  the  outlet  tunnel  was  begun 
June  18,  1908,  and  on  the  dam  proper  March,  1911. 
Considerable  preparatory  work  was  necessary  as  the 
work  was  done  by  the  sluicing  method.  The  system 
was  practically  complete  by  the  close  of  the  year  1914. 
The  dam  was  constructed  directly  by  the  State  whereas 
the  54  miles  of  canals  were  built  under  contracts.  The 
completed  Piute  Reservoir  holds  approximately  93,000 
acre  feet  of  water  and  it  and  the  canals  cost  the  State 
$790,000.  The  stored  waters  will  irrigate  35,000 
acres.  These  lands  have  sold  from  three  dollars  per 
acre  for  non-irrigable  land  to  $71  per  acre  for  irrigable. 


STATE  IRRIGATION  PROJECTS  227 

The  law  fixed  the  price  of  the  water  at  the  cost  of  the 
project  but  did  not  fix  the  price  of  the  state  owned 
lands  and  some  of  these  sold  without  the  water  as 
high  as  $36  an  acre  at  competitive  sales.  Such  lands 
were  sold  at  $2.50  per  acre  before  the  construction  of 
the  reservoir.  This  is  a  splendid  example  of  the  law  of 
joint  demand.  In  this  instance  the  price  of  one  element 
was  fixed  and  the  other  rose  immediately  until  the 
two  combined  produced  a  value  generally  accorded  to 
land  and  water  in  the  community. 

In  accordance  with  the  law  private  owners  of  land 
who  desired  to  purchase  water  from  the  Piute  Reservoir 
had  to  enter  into  a  contract  with  the  State  before  the 
project  was  begun.  The  purpose  of  such  an  arrange- 
ment was  to  protect  the  investment  the  State  was  about 
to  make. 

The  contract  under  which  water  was  sold  to  the  pri- 
vate owners  of  land  fixed  the  sale  price  for  an  acre  at 
the  pro  rata  cost  per  acre  of  the  water  with  a  provision 
that  a  water  right  for  an  acre  should  not  exceed  $30 
per  acre.  The  payments  were  to  be  made  in  ten  equal 
annual  installments.  Both  in  the  Hatchtown  and 
the  Piute  Reservoir  projects  the  board  had  the  author- 
ity by  law  to  abate  the  interest  and  to  defer  the  annual 
payments,  if  the  settlers  were  not  able  to  meet  them. 
Until  all  payments  were  made  in  full  for  the  water  the 
water  rights  were  appurtenant  to  the  particular  piece 
of  land  for  which  it  was  purchased  and  the  contract 
entered  into  for  the  water  was  a  first  lien  upon  the  land. 
The  amount  of  water  to  be  supplied  to  users  under  the 
system  was  a  maximum  of  two  and  one-half  acre  feet. 
If  for  some  reason  the  supply  failed  so  that  there  was 


228      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

not  sufficient  water  for  the  entire  area  at  two  and  one- 
half  acre  feet  the  entire  acreage  covered  by  the  system 
was  to  suffer  a  proportionate  reduction.  The  State 
Board  of  Land  Commissioners  was  to  retain  control 
and  management  of  the  reservoir  and  canals  until  the 
State  was  reimbursed  from  the  sale  of  water  rights  for 
the  cost  of  the  entire  system.  When  the  water  right  is 
paid  for  in  full,  the  purchaser  is  to  receive  from  the 
State  a  patent  conveying  a  clear  and  unencumbered 
water  right  title  together  wi*h  a  pro  rata  interest  in  the 
reservoir  and  canals. 

STATEMENT  OF  EXPENDITURE  AND  RETURNS  OF  THE 
HATCHTOWN  AND  PIUTE  PROJECTS 

COST 

Hatchtown  Project  $178,000 

Piute   Project $790,000 

TOTAL  $968,000 

RETURNS 
HATCHTOWN  PROJECT. 

6,000  Acres  of  land  at  $2.50  per  acre  $      15,000 

8,000  Acres  of  water  at  $35  per  acre  $   280,000 

PIUTE  PROJECT 

12,500  Acres  of  land  at  a  valuation $    200,000 

35,000  Acres  of  water  at  $35  per  acre   $1,225,000 


$1,640,000 

The  Piute  project  was  sold  to  the  farmers  using 
water  under  it,  April  1,  1920,  for  about  one  million 
three  hundred  dollars. 

As  indicated  in  preceding  chapters,  the  earlier  irri- 
gation undertakings  were  largely  individual  and  coop- 
erative. These  naturally  selected  the  simpler  and  easier 


STATE  IRRIGATION  PROJECTS  229 

projects  but  as  the  State  has  grown  in  population  the 
more  expensive  and  more  difficult  dams  and  canals  have 
been  undertaken.  Such  enterprises  involve  the  expen- 
diture of  considerably  more  capital  and  likewise  a 
greater  cost  per  acre  irrigated.  The  amount  of  capital 
involved  is  ordinarily  too  large  for  poor  settlers  or  for 
one  investor.  As  a  rule  the  organizations  take  on  the 
form  of  legal  corporations.  As  a  matter  of  fact  most 
of  the  earlier  canals  built  by  communities  as  cooperative 
undertakings  for  administrative  purposes  and  conven- 
ience are  now  organized  as  corporations.  If  the  grow- 
ing agricultural  population  of  the  State  is  to  be  supplied 
with  new  lands  to  meet  its  needs  the  larger  undertakings 
must  receive  State  or  Federal  support.  According  to 
the  provisions  of  the  law  of  1905  the  State  Board  of 
Land  Commissioners  have  extended  loans  from  the  state 
reservoir  fund  to  the  following  companies: 

STATE  LOANS  TO  IRRIGATION  PROJECTS 

DATE    NAME                                  AMOUNT  PAID  UNPAID 

1912  New   Hope    $20,000  $2,700  $17,3P'> 

1907  Irrigation  Lands  Co 100,000  20,000  80,000 

1911  Green  River  Irrigation  Co.       50,000  4,000  46,00') 

1912  Cache    Valley    Irrigation         20,000  20,000  20,001) 
District    

1907  Deseret  Irrigation  Co 70,000  63,000  7,000 

1912  Sego  Irrigation  Co 35,700  17,850  17,850 

1913  Timpanogos  Irrigation  Co.       12,500  6,250  5,250 

By  some  persons  this  would  be  regarded  as  paternal- 
ism, but  it  does  not  need  prophetic  vision  to  see  that  be- 
fore many  decades  have  passed  the  State  will  have  to 
make  more  liberal  extensions  of  credits  to  irrigation 
undertakings  and  either  it  or  the  Federal  Government 
will  have  to  engage  directly  in  the  construction  of  irri- 


230      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

gation  projects  on  a  large  scale.  As  a  matter  of  fact 
state  or  Federal  undertakings  are  the  more  logical. 
Private  undertakings  are  always  based  upon  the  hopes 
of  large  returns.  Sometimes  the  profits  are  large; 
sometimes  they  are  small.  The  State  or  the  Federal 
Government  can  afford  to  forego  profits  and  look  at  the 
larger  results.  The  Federal  Government  has  the  ad- 
vantage for  it  owns  most  of  the  land ;  it  can  secure  the 
proper  kinds  of  construction  machinery  which  it  can 
use  for  several  projects,  and  it  can  construct  the  plants 
cheaper  than  private  enterprise.  The  government  can 
also  extend  supervision  and  credits  to  poor  settlers  that  a 
private  company  can  not  do.  Moreover  it  can  select  its 
settlers  so  as  to  avoid  the  speculator  and  the  agricul- 
turally unfit  and  place  on  the  land  a  class  of  real  home 
builders.  Critics  may  apply  to  the  undertaking  the 
word  paternalism  or  any  term  they  may  select,  but  if 
it  does  not  belong  to  the  activities  of  the  government 
to  assist  in  developing  its  resources  in  the  interest  of  the 
people  then  it  is  difficult  to  see  what  important  function 
in  should  perform. 


CHAPTEK  XIV 

THE   CAREY  ACT 

The  early  undertakings  in  irrigation  reclaimed  the 
lands  that  were  most  accessible  to  the  streams  and  the 
springs.  Generally  these  lands  could  be  irrigated  by 
small  canals  or  ditches  constructed  by  individuals  or 
by  small  communities.  The  time  came,  however,  in 
the  arid  West  when  the  low  lands  which  were  easily  re- 
claimable  were  nearly  all  under  cultivation.  The  lands 
that  lie  some  distances  away  from  the  streams  and  up 
along  the  foothills  of  the  mountains  are  freer  from 
alkali,  possess  better  drainage  facilities  and  are  easier  to 
till  than  the  low  lying  soils.  This  was  due  chiefly  to 
the  fact  that  the  fertile  soils  of  the  mountains  have  been 
washed  down  by  the  spring  floods  and  have  lodged  upon 
the  mesas  or  plateaus.  These  soils  are  often  several 
feet  in  depth.  In  order  to  irrigate  them,  it  was  neces- 
sary to  construct  expensive  canals  with  their  sources 
far  up  in  the  canyons.  In  constructing  the  high-line 
canals,  well  up  on  the  sides  of  rocky  canyons,  it  is  nec- 
essary to  fill  ravines  and  blast  tunnels  through  ledges  of 
rock,  a  very  costly  undertaking. 

For  an  individual,  or  even  a  small  community  of  poor 
settlers,  to  reclaim  these  very  valuable  lands  by  irriga- 
tion is  an  impossibility.  They  lack  the  financial  re- 
sources for  its  accomplishment  for  it  must  be  borne  in 

231 


232      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

mind  that  no  returns  from  this  soil  can  be  obtained 
until  an  expensive  system  of  canals  has  first  been  con- 
structed and  water  turned  on  the  land.  It  is  true,  that 
due  to  community  cooperative  undertakings,  relatively 
more  had  been  accomplished  in  Utah  at  an  early  date, 
in  reclaiming  these  high  lands  than  in  any  other  West- 
ern State.  Still  there  were  many  large  feasible  under- 
takings that  had  not  been  considered. 

The  Homestead  Act  had  permitted  any  entryman  to 
acquire  160  acres  or  a  fraction  thereof.  This  was  large 
enough  an  area  for  a  man  without  capital  to  reclaim 
and  irrigate.  Yet  by  some  unexplainable  reason,  per- 
haps in  the  hopes  of  encouraging  men  with  capital  to 
undertake  the  reclamation  of  arid  lands,  Congress  in 
1877  passed  the  Deseret  Land  Act  which  allowed  the 
entry  of  640  acres.  It  applied  to  the  public  lands  in 
the  arid  States  and  territories,  except  Kansas,  Nebraska 
and  Oklahoma.  Land  that  would  produce  sufficient 
native  grasses  to  make  a  crop  of  hay  or  land  that  would 
produce  an  average  crop  of  any  kind  without  irrigation 
did  not  come  under  the  provisions  of  the  law.  The 
entryman  had  to  be  twenty-one  years  old  and  a  resident 
of  the  State.  Residence  on  the  land  was  not  required, 
but  each  year  for  the  first  three  years  proof  must  be 
filed  in  the  land  office  showing  an  expenditure  of  at  least 
one  dollar  an  acre  for  the  acquiring  of  water,  the  con- 
struction of  canals  or  the  erection  of  farm  fences  and 
buildings.  Before  final  proof  could  be  made  and  patent 
obtained  certain  very  definite  requirements,  pertaining 
to  water  rights  and  the  area  under  cultivation  must  be 
met.  In  addition  to  the  foregoing  requirements  an 
initial  payment  of  twenty-five  cents  an  acre  had  to  be 


THE  CAREY  ACT  233 

made,  and  an  additional  dollar  an  acre  at  the  time  of 
final  payment  was  required.  In  1891  the  number  of 
acres  was  reduced  from  640  to  320. 

Under  this  act,  however,  no  considerable  area  of  land 
in  Utah  was  reclaimed.  The  same  can  likewise  be  said 
of  other  States.  The  failure  was  primarily  due  to  the 
fact  that  the  legislation  was  based  upon  the  theory  of 
individual  action;  an  impossible  procedure  in  reclaim- 
ing any  considerable  area  of  arid  lands.  The  area  was 
altogether  too  large  for  the  individual  irrigator  to  re- 
claim and  altogether  too  small  for  the  capitalist  to  con- 
sider with  the  view  of  supplying  water  and  selling  it  to 
actual  settlers.  The  act  fell  far  short  of  accomplishing 
the  purposes  of  its  promoters. 

In  many  cases  private  capital  had  undertaken  the 
construction  of  irrigation  systems  which  would  supply 
water  for  large  areas  of  arid  lands,  e.  g.,  the  Bear 
Lake  and  River  Water  Works  and  Irrigation  Canal  in 
Box  Elder  County,  Utah,  has  already  been  mentioned, 
but  there  was  no  way  of  having  the  public  lands,  which 
the  canals  were  intended  to  irrigate,  withdrawn  from 
entry.  Neither  could  any  legal  requirement  be  made 
of  the  settlers  or  entrymen  on  the  land  obligating  them 
to  purchase  water  for  irrigation  from  the  canal  com- 
pany upon  the  completion  of  the  system.  Thus  there 
was  no  protection  for  the  companies  that  had  invested 
their  capital  in  the  enterprises.  The  result  was  that 
as  soon  as  the  canals  were  well  toward  completion  actual 
settlers  and  land  speculators  would  enter  upon  the  land 
under  the  Homestead  and  pre-emption  land  laws  of  the 
United  States  and  conform  sufficiently  to  the  laws  to 
secure  title  to  the  land.  It  would  then  become  a  wait- 


234      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

ing  game.  Perhaps  a  little  dry  farming  would  be  car- 
ried on  but  the  land  owners  would  refuse  to  purchase 
permanent  water  rights  for  the  land  or  even  to  buy  an 
annual  supply.  In  the  meantime,  due  to  the  fact  that 
water  was  really  available,  the  land  would  rapidly  in- 
crease in  value  by  merely  holding  it.  The  canal  system, 
on  the  contrary,  was  a  constant  source  of  expense 
whether  in  use  or  not.  A  canal  will  frequently  dete- 
riorate more  rapidly  when  idle  than  when  in  use.  If 
the  settlers  bought  little  or  no  water  it  can  be  readily 
comprehended  how  the  system  could  not  possibly  pay 
expenses.  In  the  construction  of  a  system  the  esti- 
mated income  for  interest  payments,  operating  and 
maintenance  expenses  was  based  upon  the  returns  ob- 
tainable from  the  use  of  water  upon  the  major  part  of  the 
entire  area  covered.  It  certainly  would  not  pay  if 
only  a  small  portion  of  the  land  was  irrigated. 

In  a  vast  majority  of  cases  where  the  canals  were  built 
as  capitalistic  undertakings  the  ventures  were  unprofit- 
able either  through  a  miscalculation  of  the  cost  or 
through  a  failure  to  sell  the  water.  In  many  instances 
the  companies  became  bankrupt.  The  Bear  Lake  and 
River  Canal  cost  over  one  and  a  quarter  million  dol- 
lars from  1889  to  1893  and  sold  at  a  bankruptcy  sale  in 
1894  for  $125,000.  Yet  it  was  an  entirely  feasible 
undertaking;  there  was  plenty  of  water;  the  cost  per 
acre  of  land  to  be  irrigated  was  reasonable  and  the  land 
itself  was  first  class.  The  difficulty,  however,  was  in 
part  due  to  the  fact  that  the  settlers  and  speculators 
owned  the  lands  and  would  not  buy  the  water.  Some 
bona  fide  settlers  deliberately  delayed  the  purchase  of 
water  rights  until  they  were  sold  cheap  which  usually 


THE  CAREY  ACT  235 

happened  after  the  system  had  passed  through  a  court 
of  bankruptcy. 

With  the  number  of  failures  before  them,  capitalists 
refused  to  invest  further  in  irrigation  enterprises  until 
means  were  provided  whereby  they  could  compel  settlers 
upon  public  lands,  for  which  an  irrigation  system  was 
proposed,  to  buy  water  rights  within  a  given  time  after 
the  water  had  been  supplied  to  the  land.  If  the  arid 
states  were  to  develop  and  become  more  thickly  popu- 
lated large  irrigation  systems  must  be  built.  Such  un- 
dertakings were  too  large  for  a  few  scattered  settlers  so 
either  the  states  themselves,  the  Federal  Government 
or  capitalists  would  have  to  undertake  the  task.  At  this 
period  of  national  development  neither  the  States  nor 
the  Federal  Government  would  consider  the  reclamation 
of  arid  lands,  so  in  order  to  encourage  private  capital 
the  Federal  Government  passed  the  Carey  Act,  August 
18,  1894.  It  was  christened  for  Senator  Carey  of 
Wyoming  who  introduced  the  bill  and  secured  its  pas- 
sage. The  provision  first  appeared  as  an  amendment 
to  the  Sundry  Civil  Expense  Bill  and  appears  in  the  law 
as  section  4.  The  full  section  is  as  follows :  "  That  to 
aid  the  public  land  states  in  the  reclamation  of  the 
desert  lands  therein  and  settlement  and  cultivation  and 
sale  thereof  in  small  tracts  to  actual  settlers,  the  Secre- 
tary of  the  Interior  with  the  approval  of  the  President, 
be  and  hereby  is  authorized  and  empowered  upon  proper 
application  of  the  State  to  contract  and  agree  from  time 
to  time  with  each  of  the  States  in  which  there  may  be 
situated  desert  lands  to  donate,  grant  and  patent  to 
the  State  free  of  cost  for  survey  or  price  such  desert 
lands,  not  exceeding  one  million  acres  in  each  State 


236      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

as  the  State  may  cause  to  be  irrigated,  reclaimed,  occu- 
pied and  not  less  than  twenty  acres  of  each  160  tract, 
cultivated  by  actual  settlers  within  ten  years  next  after 
the  passage  of  this  act." 

The  provision  obviously  intended  that  the  arid  States 
themselves  would  either  undertake  the  actual  reclama- 
tion by  furnishing  capital  and  undertaking  the  construc- 
tion of  reservoirs,  dams  and  canals  or  that  the  States 
would  lend  their  credit  to  communities  of  settlers  or 
companies  to  accomplish  the  same  purpose.  Such  a 
provision  was  impossible  of  execution  because  the  arid 
States  did  not  possess  the  available  funds  and  further- 
more in  most  instances  if  they  had  possessed  the  capital 
their  state  constitutions  forbade  their  extending  credit 
to  private  undertakings.  The  Utah  constitution  reads 
as  follows :  "  The  legislature  shall  not  authorize  the 
State  or  any  county,  city,  town,  district,  or  other  politi- 
cal sub-division  of  the  State  to  lend  its  credit  or  subscribe 
to  stock  or  bonds  in  aid  of  any  railroad,  telegraph,  or 
other  private  individual  or  corporate  enterprise  or  un- 
dertaking." Most  of  the  Western  States  found  them- 
selves in  similar  positions. 

Even  if  the  States  had  possessed  the  necessary  funds 
and  if  there  had  been  no  constitutional  obstacles  in  the 
way,  the  law  itself  contained  an  unsurmountable  dif- 
ficulty. It  fixed  a  period  of  ten  years  from  the  passage 
of  the  law  for  the  completion  of  any  project  undertaken. 
Such  a  period  of  time  was  entirely  too  short  to  under- 
take a  piece  of  work  of  any  magnitude.  To  begin  with 
it  took  nearly  two  years  after  the  passage  of  the  act  for 
the  preliminaries  to  be  worked  out  by  the  Federal  Gov- 
ernment and  then  the  State  Legislatures  had  to  enact  the 


THE  CAREY  ACT  237 

necessary  legislation  before  any  action  could  be  taken. 
At  the  best  about  all  the  States  could  do  was  to  accept 
the  provisions  of  the  act  and  look  forward  to  more  favor- 
able legislation.  Utah  was  not  admitted  into  the  Union 
as  a  State  until  January  1896.  Thus  from  the  very 
nature  of  the  situation  the  time  was  very  much  reduced 
for  Utah  accepted  the  provisions  of  the  act  in  1901. 

In  1896  the  Carey  Act  was  amended,  and  States  ac- 
cepting the  act  of  August  18,  1894,  were  authorized  to 
create  a  lien  or  liens  upon  the  several  divisions  and  sub- 
divisions of  the  land  for  the  actual  cost  of  reclamation 
together  with  reasonable  interest  and  profit  from  the  date 
of  reclamation  until  the  actual  disposal  of  the  lands  to 
the  settlers.  Moreover  when  a  particular  area  was  sup- 
plied with  water  by  a  substantial  canal  even  though  the 
area  actually  irrigated  was  only  part  of  the  area  to  be 
reclaimed  the  new  amendment  provided  that  patents 
should  issue  "  to  the  State  without  regard  to  settle- 
ment or  cultivation."  A  further  amendment  of  March 
3,  1901,  provided  that  the  term  of  ten  years  should  begin 
to  run  from  the  date  of  the  approval  of  the  project  by 
the  Secretary  of  the  Interior.  If  the  ten  years  did  not 
prove  sufficient  for  the  completion  of  the  irrigation 
project  the  Secretary  of  the  Interior  may,  at  his  dis- 
cretion, extend  the  time  five  years  longer.  Both  of 
these  amendments  were  essential.  They  made  it  possi- 
ble to  undertake  the  reclamation  of  arid  lands  by  com- 
panies with  capital  because  a  lien  was  created  on  the 
land  reclaimed  until  such  time  as  the  settlers  had  paid 
for  the  water.  Ten  to  fifteen  years  was  a  reasonable 
time  for  the  construction  of  a  system  and  the  sale  of 
the  lands.  But  in  the  larger  opportunities  for  reclama- 


238      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

tion  even  fifteen  years  was  too  short.  The  second 
amendment  permitted  the  sale  of  the  water  and  land 
as  each  unit  was  completed.  By  these  two  amendments 
at  least  a  reason ahle  time  was  provided  for  construc- 
tion and  sale  and  also  a  way  was  opened  for  returns 
whenever  a  unit  of  the  system  was  completed  and  the 
lands  placed  on  sale.  On  March  15,  1010,  the  law  was 
further  amended  providing  that  upon  the  application  of 
the  proper  state  official  the  Secretary  of  the  Interior 
could  temporarily  withdraw  the  lands  it  was  proposed 
to  include  within  the  boundaries  of  a  Carey  Act  pro- 
ject. This  provision  was  highly  necessary  in  order  to 
prevent  speculators  from  locating  upon  lands  that  were 
under  investigation  for  a  Carey  Act  project.  Before 
this  provision  was  enacted  it  was  the  common  practice, 
as  soon  as  the  information  leaked  out  that  a  reclamation 
project  was  to  be  undertaken,  for  speculators  to  locate 
on  the  land  in  order  to  be  bought  out  by  the  company 
or  to  enjoy  the  enhanced  price  of  the  land  as  soon  as 
water  was  obtainable.  The  entry  of  the  land  before  it 
was  withdrawn  prevented  a  lien  being  placed  upon  it. 
The  amendment  of  1910  prevented  such  entries  by  per- 
mitting a  temporary  withdrawal  for  investigation  pur- 
poses. 

The  State  Board  of  Land  Commissioners  of  Utah  in 
1897  recommended  the  acceptance  of  the  provisions  of 
the  Carey  Act  but  it  was  not  until  March  14,  1901,  that 
the  legislature  accepted  its  provisions  and  placed  the  re- 
sponsibility of  carrying  it  into  effect  on  this  board. 
There  was  not  a  ready  response  to  the  provisions  of 
the  act.  In  1902  the  Board  of  Land  Commissioners 
expressed  itself  as  follows :  "  Thus  the  Carey  law  has 


THE  CAREY  ACT  239 

proven  absolutely  valueless  to  the  State  of  Utah,  due  un- 
doubtedly to  the  lack  of  water  for  irrigation  or  the 
extraordinary  cost,  as  compared  with  the  value  of  the 
land  of  conserving  water  during  flood  periods  for  use 
when  required  for  maturing  crops."  It  is  true  that  the 
value  of  land  was  low  at  that  time  but  the  statement  is 
almost  prophetic  of  the  entire  history  of  the  Carey  Act 
in  Utah  to  date.  This  is  not  because  the  State  does  not 
offer  opportunities  but  because  of  the  inability  to 
finance  large  undertakings.  In  Utah  several  very  large 
undertakings  are  possible.  Too  large  in  fact  for  pri- 
vate capital  at  the  present  stage  of  Western  development. 
The  Carey  Act  at  best  is  only  a  compromise.  The  idea 
is  the  employment  of  private  capital  for  the  development 
of  irrigation  projects  and  the  sale  of  land  and  water  to 
settlers,  but  the  profits  expected  by  the  promoters  are 
usually  too  large  for  the  new  settler  to  pay.  Pioneering 
is  difficult  enough  under  the  most  favorable  circum- 
stances but  to  impose  upon  it  the  payment  of  a  large 
sum  for  profits  in  addition  to  the  legitimate  charges  for 
securing  water  is  a  burden  the  settlers  cannot  carry 
except  in  a  few  of  the  more  feasible  and  cheaply  con- 
structed projects.  The  smaller  irrigation  systems 
should  be  constructed  by  the  State  and  the  larger  ones 
by  the  Federal  Government.  Agriculture  is  a  primary 
industry  and  at  the  foundation  of  national  success. 
The  development  of  agriculture  and  home-making  should 
be  two  of  the  principal  concerns  of  the  State.  It  would 
seem  for  a  nation  that  has  done  much  in  the  way  of 
tariff  and  bounties  to  encourage  the  development  of  man- 
ufacturing, that  the  least  it  could  do  to  encourage  rural 
home-making  and  agriculture  would  be  to  grant  them  an 


240      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

extension  of  its  credit,  under  proper  safeguards  for  pay- 
ment of  the  principal  and  interest.  Under  such  cir- 
cumstances many  of  the  larger  areas  would  financially 
justify  irrigation  systems  and  in  all  cases  the  settler 
and  farmer  would  be  assured  much  greater  stability  in 
the  undertaking. 

By  the  law  of  1901,  Utah  in  addition  to  accepting  the 
provisions  of  the  Carey  Act,  placed  the  authority  for 
making  contracts  and  carrying  the  act  into  effect  in  the 
State  in  the  hands  of  the  State  Board  of  Land  Commis- 
sioners, subject  of  course  to  the  provisions  of  the  act 
itself.  In  general  the  provisions  of  the  law  were  as  fol- 
lows: any  person  or  corporation  desiring  to  extend  or 
enlarge  an  old  system  or  construct  a  new  one  under 
the  Carey  Act  must  file  with  the  board  an  application 
for  the  selection  of  the  lands  to  be  reclaimed.  A  descrip- 
tion of  the  system  by  which  it  is  proposed  to  reclaim  the 
lands  must  accompany  the  application.  Such  descrip- 
tion must  give  the  source  and  estimated  supply  of  the 
water  and  also  an  estimate  of  the  cost  of  the  entire 
system  with  the  maximum  cost  of  water  per  acre  for  a 
perpetual  water  right  together  with  the  annual  main- 
tenance and  operation  charge.  The  individuals  or 
. corporations  making  the  application  were  required  to 
supply  such  information  as  would  enable  the  state  board 
to  determine  their  financial  responsibility.  As  an  evi- 
dence of  good  faith  on  the  part  of  the  applicant  it  was 
required  that  a  certified  check  of  at  least  $250  must  ac- 
company the  application. 

When  the  requirements  are  fully  met,  it  becomes  the 
duty  of  the  State  Board  of  Land  Commissioners  to  de- 
termine whether  the  project  is  feasible ;  whether  the  ca- 


THE  CAREY  ACT  241 

pacity  of  the  proposed  works  is  adequate  for  the  area 
to  be  covered ;  whether  the  construction  charges  are  rea- 
sonable ;  whether  there  is  sufficient  water  to  irrigate  all 
the  land;  and  whether  the  land  is  desert  in  character. 
If  the  investigation  established  all  these  facts  favorably 
and  others  set  forth  in  the  application,  the  land  board 
must  publicly  advertise  the  application  for  thirty  days 
so  that  any  one  desiring  to  object  may  do  so  with  all  the 
facts  and  information  available.  The  board  has  author- 
ity to  reject  the  application  in  its  entirety  or  require 
certain  changes  or  amendments  to  be  made.  If  the 
application  is  approved  it  becomes  the  duty  of  the  board 
to  enter  into  a  contract  involving  every  detail  of  the 
undertaking  with  the  individual  or  the  company  so  as 
to  protect  the  State,  the  settlers,  and  the  promoter. 
The  contract  must  contain  special  sections  dealing 
with  the  nature  and  durability  of  the  construction 
works ;  and  the  price  of  a  perpetual  water  right  to  the 
settlers  together  with  the  amount  per  acre  of  the  annual 
operation  and  maintenance  charge.  The  board  at  its 
discretion  may  include  a  provision  in  the  contract  that 
the  settlers  upon  the  full  payments  of  all  water  charges 
for  a  permanent  water  right  shall  acquire  an  interest 
in  the  irrigation  system  in  the  proportion  that  the  pay- 
ments made  by  each  user  bears  to  the  total  cost  of  the 
system  or  in  the  proportion  that  the  individually  irri- 
gated lands  bear  to  the  total  lands  irrigated.  The  con- 
tract must  specifically  provide  for  the  amount  of  water 
that  the  canal  system  is  annually  to  supply  each  acre  of 
land. 

In  the  construction  of  the  dams  and  canals,  if  the 
terms  of  the  contract  are  not  being  lived  up  to  the  board 


242      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

can  after  a  notice  of  sixty  days  and  a  failure  on  the 
part  of  the  contractor  to  comply  with  the  requirements 
of  the  contract  bring  action  in  the  courts  to  forfeit  to  the 
State  the  work  already  done.  If  the  court  decides  that 
the  quality  of  the  work  or  the  delay  in  construction 
justifies  a  forfeiture  to  the  State,  the  State  Board  of 
Land  Commissioners  is  required  to  advertise  for  a  con- 
tractor to  complete  the  work.  If  a  bid  is  received  the 
former  contractor  is  paid  the  difference  between  the 
hid  to  complete  the  work  and  the  original  bid.  If  no  bid 
is  received  for  the  completion  of  the  irrigation  system 
the  board  can  recover  on  the  bond  of  the  original  con- 
tractor and  do  the  work  itself. 

The  settler  has  to  purchase  the  land  separately  from 
the  State.  The  price  is  fixed  at  one  dollar  an  acre. 
Twenty-five  cents  per  acre  is  paid  at  the  time  of  entry 
and  the  remainder  at  the  time  of  final  proof  by  the  set- 
tler. 

All  funds  accruing  from  the  sale  of  lands  and  the 
fees  collected,  after  the  payment  of  the  actual  expenses 
of  the  board  while  employed  upon  Carey  Act  projects, 
were  to  be  placed  in  the  state  treasury  as  a  special  fund 
to  be  used  for  the  reclamation  of  arid  lands. 

A  very  important  provision  of  this  law  is  that  the 
water  rights  acquired  by  the  land  owners  under  the 
Carey  Act  in  the  State  of  Utah  are  to  be  attached  to, 
and  to  be  appurtenant  to  the  land  as  soon  as  the  title 
of  the  land  passes  from  the  United  States  Government 
to  the  State,  which  takes  place  when  the  system  or  any 
unit  part  of  it  is  complete.  This  is  an  excellent  pro- 
vision. It  is  unfortunate  that  it  does  not  apply  to  all 
the  irrigated  lands  and  waters  within  the  State.  The 


THE  CAREY  ACT  243 

free  and  open  sale  and  barter  of  water  separate  and 
apart  from  the  land  should  not  be  permitted  by  a  State. 

On  notice  by  the  company  that  the  entire  system  or 
any  unit  part  is  completed  the  Board  of  Land  Commis- 
sioners examines  it  and  if  satisfied  applies  to  the  Secre- 
tary of  the  Interior  for  a  patent.  As  soon  as  this  is 
secured  and  the  residence  requirement  is  fulfilled  the  set- 
tler is  required  to  appear  and  make  proof  of  cultivation 
and  actual  residence.  It  must,  however,  be  borne  in 
mind  that  even  when  the  patent  is  issued  to  the  settlers 
by  the  State  that  the  individual  or  company  supplying 
the  water  for  any  tract  of  land  has  a  first  and  prior 
lien  upon  the  water  rights  and  the  land  until  all  de- 
ferred payments  are  made.  A  failure  to  make  a  pay- 
ment subjects  the  owner  to  foreclosure  according  to  the 
law  applicable  to  any  ordinary  mortgage. 

Since  the  acceptance  of  the  Carey  Act  by  the  State  in 
1901  there  have  been  25  applications  under  the  law.  In 
1913  the  area  applied  for  amounted  to  999,823  acres 
of  which  the  board  had  approved  830,494  acres.  This 
marked  the  high  water  point.  Since  then  there  has 
been  a  decline  in  acreage  by  withdrawal,  disapproval  or 
failure  of  promoters  to  go  forward  with  the  work.  Up 
to  date  in  the  State  of  Utah  about  23,000  acres  of  land 
have  actually  been  reclaimed  under  the  Carey  Act  pro- 
visions. Considering  the  fact  that  careful  engineers 
estimate  that  there  are  easily  600,000  to  700,000  acres 
of  good  fertile  land  in  the  State  still  reclaimable  with 
sufficient  water  to  irrigate  it,  it  does  not  appear  that  the 
Carey  Act  is  suited  to  the  needs  of  this  work. 


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244 


CHAPTEE  XV 

RECLAMATION  SERVICE 

The  justification  for  including  this  chapter  in  this 
treatise  is  that  Utah  has  one  very  successful  irrigation 
system  under  the  United  States  Reclamation  Service 
and  in  the  very  nature  of  things  when  the  Colorado  basin 
is  eventually  reclaimed,  as  it  necessarily  will  be  by 
the  reclamation  service,  Utah  will  have  hundreds  of 
thousands  of  acres  under  the  same  system.  The  only 
power  financially  strong  enough  to  carry  through  the 
Colorado  Basin  reclamation  is  the  Federal  Government. 

After  eight  years  of  rather  profitless  experience  with 
the  Carey  Act,  it  was  apparent  to  the  leaders  of  the 
West  that  if  the  immense  tracts  of  sunburnt  but  fertile 
lands  were  to  be  reclaimed  it  would  have  to  be  by  some 
other  power  than  private  capital.  For  the  simpler 
forms  of  irrigation,  private  initiative  and  private  capi- 
tal did  well  enough  but  not  so  with  the  vast  areas  of 
excellent  lands  that  were  difficult  to  supply  with  water. 
Private  interests  must  look  for  profit  and  could  not  take 
into  serious  consideration  the  placing  of  men  on  the 
soil  and  the  establishment  of  families  on  the  lands  sim- 
ply with  a  view  of  making  homes  and  the  building  of 
commonwealths.  The  social  problem  means  nothing  to 
the  private  initiator.  His  problem  is  the  investing  of 

capital  in  such  a  way  as  to  realize  the  greatest  possible 

245 


246      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

returns,  consistent  with  security.  At  the  then  existing 
price  of  land  (1902)  private  capital  would  not  under- 
take the  larger  projects.  If  the  lands  were  to  be  re- 
deemed it  must  he  by  the  Federal  Government.  The 
government  could  afford  in  order  to  huild  common- 
wealths, to  forego  all  idea  of  profits  and  with  the  capital 
returned,  to  look  largely  to  the  economic  and  social 
results. 

Naturally  the  Western  States  were  anxious  to  have 
larger  and  denser  population.  Up  to  a  certain  point  a 
dense  population  has  advantages.  The  burdens  of 
building  better  roads,  establishing  better  schools,  libra- 
ries and  churches  are  relatively  lighter.  The  sparse 
population  of  the  Western  States  made  the  enjoyment 
of  these  essentials  of  civilization  very  expensive.  The 
hope  of  bettering  such  facilities  and  lightening  the  taxes 
made  a  strong  appeal  to  the  existing  population.  Be- 
sides, to  the  average  American,  bigness  in  itself  is  an 
important  element. 

There  were  other  elements  in  the  situation  that  the 
Easterner  did  not  understand.  If  the  vast  Western 
ranges  were  to  be  used  to  their  greatest  advantage  in  the 
production  of  meat  and  wool  some  means  must  be  pro- 
vided for  feeding  the  herds  during  the  periods  of  deep 
snow  in  winter.  Too  long,  large  herds  of  cattle  and 
sheep  had  been  allowed  to  perish  in  winter  snow.  Both 
the  ranges  and  the  live  stock  were  becoming  too  valua- 
ble for  such  treatment  even  if  the  humane  sentiment, 
which  was  now  beginning  to  be  felt,  was  left  out  of  con- 
sideration. The  irrigated  areas  to  be  reclaimed  would 
supply  forage  for  these  herds  in  winter. 

The  hills  and  mountains  of  the  Rocky  Mountains  and 


RECLAMATION  SERVICE  247 

the  Sierra  Nevada  Mountains  were  filled  with  almost 
every  kind  of  mineral  of  economic  value;  many  very 
valuable  to  the  welfare  of  the  nation.  Without  pro- 
ducing farms  within  reasonable  distances  it  would  be  ex- 
ceedingly difficult  to  supply  the  population  necessary  to 
open  and  operate  these  mines  with  food  products.  To 
transport  all  of  them  from  humid  regions  would  be 
almost  prohibitive  and  the  quality  at  best  after  such  a 
long  journey  would  be  very  poor. 

The  people  of  the  Western  States  were  fully  cogni- 
zant of  the  fact  that  the  public  domain  within  their 
boundaries  belonged  to  the  Federal  Government  and 
that  the  funds  received  from  the  sale  of  these  lands 
could  be  used  as  the  government  saw  fit.  A  vast  major- 
ity of  the  early  settlers  of  these  Western  lands  were 
descendants  of  the  early  settlers  of  the  Atlantic  Sea- 
board. They  remembered  distinctly  that  after  inde- 
pendence had  been  won  each  State  retained  possession 
of  its  public  lands.  They  had  seen  these  lands  sold  and 
the  returns  received  from  them  applied  to  some  public 
purpose.  The  West  was  a  difficult  section  of  the  nation 
to  settle,  and  it  occurred  to  them  that  inasmuch  as  the 
public  lands  were  being  sold  why  would  it  not  be  possi- 
ble to  borrow  the  funds  derived  from  the  sales  to  re- 
claim other  public  lands  which  in  turn  could  be  sold. 
The  Federal  Government  would  not  be  the  loser  but 
the  gainer  as  in  the  end  more  land  could  be  successfully 
settled.  The  borrowed  money  would  be  placed  in  a 
fund  to  build  irrigation  reservoirs  and  canals  to  supply 
water  in  the  main  to  government  lands.  When  the 
funds  were  repaid  by  the  settlers  they  would  be  used 
to  reclaim  other  lands  until  all  the  public  domain  sus- 


248      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

ceptible  of  redemption  would  be  redeemed.  Then  the 
funds  would  revert  to  the  national  treasury. 

In  preparation  for  the  work  now  at  hand,  the  geologi- 
cal survey  had  conducted  water  investigations  for  twenty 
years.  This  work  included  the  measurement  of  the 
natural  flow  and  the  flood  waters  of  the  streams  and 
the  determination  of  reservoir  sites. 

For  three  or  four  years  the  discussion  had  run  along 
the  lines  of  using  the  funds  derived  from  the  sale  of 
public  lands  for  the  reclamation  of  arid  lands.  With 
this  idea  in  mind  the  senators  and  representatives  of 
the  Western  States  prepared  a  measure  appropriating 
the  funds  derived  from  the  sale  of  Western  lands  to  a 
reclamation  fund.  It  was  introduced  into  the  National 
Congress,  passed  June  17,  1902,  and  became  known  as 
the  National  Reclamation  Act. 

The  supporters  of  the  measure  maintained  that  it 
would  help  to  reclaim  the  West,  particularly  the  large 
projects  that  could  not  be  reclaimed  by  individuals  or 
private  corporations;  it  would  afford  homes  for  home 
seekers ;  it  would  put  the  public  domain  in  a  condition 
so  that  it  could  be  sold;  and  finally  that  it  was  only  a 
loan  of  the  public  funds  which  would  be  fully  repaid. 

There  was  some  bitter  opposition  from  the  Eastern 
States.  It  was  held  to  be  unconstitutional  because  Con- 
gress had  the  authority  only  "  to  dispose  of  public 
lands."  It  was  contended  that  this  provision  in  the 
constitution  meant  the  sale  and  not  the  improvement 
of  the  lands  before  sale.  Moreover,  the  public  lands 
were  the  property  of  the  nation  and  the  funds  derived 
from  them  belonged  to  all.  Therefore  the  use  of  these 
funds  for  this  purpose  meant  the  taking  of  them  from 


RECLAMATION  SERVICE  249 

citizens  of  the  East  and  loaning  of  them  to  the  West. 
The  result  would  be  that  the  Easterner  would  have  to 
bear  additional  taxation  to  make  good  this  diversion 
of  funds.  In  addition  to  the  heavier  taxes  it  meant 
increased  competition  to  the  farmers  of  the  East  by  the 
opening  up  of  the  new  agricultural  lands.  One  point 
of  opposition  proved  true,  namely,  that  the  work  would 
be  begun,  the  funds  would  prove  inadequate,  and  Con- 
gress would  be  asked  for  a  loan.  Mr.  Ray,  Congress- 
man from  New  York,  summed  up  the  opposition  as 
follows :  "  I  say  the  bill  is  unjust  and  unfair  to  the 
farmers  of  the  East.  I  say  it  is  unwise  and  improvi- 
dent as  a  scheme.  I  say  that  it  is  a  dangerous  power  to 
put  in  the  hands  of  the  Secretary  of  the  Interior  and 
that  there  will  be  scandal.  I  say  that  the  revenues, 
the  moneys  derived  from  the  sale  of  public  lands  would 
prove  insufficient  to  carry  out  this  scheme;  and  within 
three,  certainly  within  five  years  those  interested  would 
be  appealing  to  Congress  to  appropriate  money  out  of 
the  public  treasury  with  which  to  carry  on  and  com- 
plete the  scheme." 

The  National  Reclamation  Law  was  approved  June 
2,  1902.  It  was  the  first  attempt  on  the  part  of  Con- 
gress to  aid  directly  in  the  construction  of  irrigation 
works  upon  the  public  lands.  It  was  an  effective  reali- 
zation on  the  part  of  Congress  that  water  and  not  land 
is  the  all  important  factor  in  Western  development. 
In  the  arid  States  water  is  the  measure  of  production 
and  agricultural  development.  If  the  West  is  to  have  a 
larger  population  the  water  that  now  runs  to  waste  must 
be  stored  for  irrigation. 

The   National  Reclamation   Act  provides   that   the 


250      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

proceeds  of  the  sales  of  public  lands,  except  a  small 
percentage  set  aside  for  schools  shall,  "  be  set  aside  and 
appropriated  as  a  special  fund  to  be  known  as  the  rec- 
lamation fund,  the  same  to  be  used  in  the  examination 
and  survey  and  the  construction  of  and  maintenance 
of  irrigation  works  for  the  storage,  diversion  and  devel- 
opment of  arid  states  and  territories."  The  funds  thus 
set  aside  were  considerable  because  the  sales  of  lands 
amounted  to  several  millions  of  dollars  annually.  They 
were  to  be  spent  upon  projects  selected  by  the  Secretary 
of  the  Interior  after  proper  surveys  had  been  made. 
Before  making  surveys  of  the  land  and  the  water  which 
it  contemplated  bringing  under  the  reclamation  project 
the  Secretary  of  the  Interior  was  authorized  to  withdraw 
the  lands  from  entry.  The  object  in  doing  this  was  to 
make  all  the  lands,  in  case  the  project  proved  feasible, 
subject  to  the  provisions  of  the  act.  The  most  important 
provision  of  the  act  is  the  one  which  makes  the  water 
charge  a  lien  upon  the  land.  If  the  land  was  home- 
steaded  prior  to  its  withdrawal  this  could  not  be  done 
without  the  consent  of  the  homesteader.  As  soon  as 
practicable  after  the  withdrawal  of  the  lands  a  complete 
survey  was  made  to  determine  the  feasibility  of  the  pro- 
ject. If  unfeasible  the  lands  were  restored  for  entry 
but  subject  to  all  the  conditions  of  the  Homestead  Act. 

The  actual  construction  work  of  the  reservoirs  and 
canals  could  be  done  by  the  reclamation  service  itself  or 
by  contract.  Both  systems  have  been  employed. 

In  the  earlier  undertakings  it  was  the  policy  to  open 
the  lands  for  entry  soon  after  the  project  was  begun. 
An  estimate  of  costs  subject  to  subsequent  change  was 
made  and  the  settlers  admitted.  Entry-men  at  once 


RECLAMATION  SERVICE  251 

crowded  upon  the  lands  under  the  Homestead  Act  in 
the  hopes  of  obtaining  a  free  farm.  Frequently  it  was 
years  before  the  water  was  available  for  irrigation. 
Living  on  the  land  during  all  this  time  was  almost  im- 
possible unless  the  settler  was  fairly  well  to  do  before 
entering  upon  it.  He  could  not  move  away,  even  tem- 
porarily, without  losing  the  right  to  his  claim.  So  he 
had  to  remain  on  the  land.  Most  of  the  settlers  were 
very  poor  and  had  to  labor  upon  canal  construction  in 
order  to  live.  But  such  employment  of  their  time  did 
not  enable  them  to  prepare  their  land  for  crops. 

Construction  work  on  reclamation  projects  could  not 
be  carried  on  in  many  sections  of  the  West  in  the  winter 
season.  Yet  the  settlers  were  so  isolated  that  when 
work  was  suspended  they  could  find  nothing  to  do  and 
often  found  themselves  in  want,  because  they  could  not 
desert  their  families  and  go  elsewhere.  At  the  same 
time  the  frozen  ground  made  it  impossible  to  work  on 
the  land  in  order  to  remove  the  sage  and  to  prepare 
it  for  crops.  So  when  the  water  did  eventually  reach 
the  land  and  construction  work  stopped  the  settlers 
found  themselves  without  income  and  with  farm  lands 
unprepared  for  crop  production.  This  policy  was  reme- 
died in  1910  by  keeping  the  project  closed  until  the 
water  was  ready  for  use  and  those  already  on  their 
lands  were  permitted  to  obtain  a  temporary  leave  of 
absence  until  the  completion  of  the  project.  Even 
when  the  water  was  at  hand  it  was  a  long  hard  struggle. 

The  sage  brush  had  to  be  removed  and  the  land  leveled 
so  that  water  would  flow  uniformly  over  it.  Often  it 
was  at  least  two  years  before  a  crop  could  be  produced 
by  the  end  of  which  time  the  poorer  settlers  had  been 


252      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

starved  out.  Through  much  advertising  a  new  crop  of 
farmers  was  at  hand  to  begin  the  work  where  the  old 
ones  had  left  off.  In  many  projects  it  required  three 
crops  of  settlers  before  they  became  established.  This 
in  brief  is  a  history  of  too  many  of  the  reclamation  pro- 
jects of  the  United  States.  If  the  Federal  Government 
is  to  continue  reclamation  work)  as  it  will  have  to  do 
there  being  no  other  organization  in  the  nation  strong 
enough  for  the  immense  undertaking,  it  will  have  to 
render  more  financial  and  industrial  and  social  assist- 
ance to  the  new  settlers.  A  supply  of  water  is  not 
sufficient.  No  government  can  afford  to  bankrupt  two 
or  three  crops  of  settlers  and  make  anarchists  instead  of 
farmers  out  of  them.  It  had  better  leave  the  entire 
thing  alone.  The  early  pioneers  had  only  unyielding 
nature  to  fall  back  upon  but  the  new  settlers  are  not 
willing  to  endure  such  hardships. 

Before  a  United  States  patent  can  be  issued  to  the 
homesteader  he  has  to  pay  for  his  water  in  full  and  re- 
claim at  least  one-half  of  the  total  irrigable  area  of  his 
entry.  Until  such  time  the  United  States  retains  a 
first  lien  against  the  land.  This  works  a  hardship 
upon  the  settler  because  with  a  first  lien  already  upon 
the  land  it  is  practically  impossible  to  pledge  it  for  a 
loan  to  assist  in  development. 

The  maximum  water  right  allowed  to  any  entryman 
or  land  owner  is  the  amount  necessary  for  160  acres. 
Where  the  owner  possesses  more  than  that  amount  of 
land  the  only  way  to  secure  water  for  it  is  to  sell  the 
land  to  other  holders.  If  the  lands  are  sold  it  must 
be  a  bona  fide  sale  to  an  owner  resident  upon  it  or  in  the 
locality.  Forty  to  eighty  acres  of  public  land  is  the 


DECLAMATION    SERVICE  253 

usual  farm  tract,  but  in  certain  projects  where  highly 
intensified  farming,  especially  fruit  production  is  car- 
ried on,  the  farm  acreage  is  placed  as  low  as  twenty 
acres.  Whether  these  small  farms  are  economic  units 
for  production  and  operation  is  an  open  question.  It  is 
doubtful  from  investigation  made  whether  they  will  be 
found  large  enough  to  pay. 

The  price  of  water  was  first  divided  into  ten  pay- 
ments but  by  the  law  of  August  13,  1914,  was  changed. 
It  now  reads  as  follows :  "  Any  person  who  hereafter 
makes  entry  shall  pay  into  the  reclamation  fund  five 
per  centum  of  the  construction  charge  for  his  land  as 
an  initial  installment,  and  shall  pay  the  balance  of  said 
charge  in  fifteen  annual  installments,  the  first  five  of 
which  shall  each  be  five  per  centum  of  the  construc- 
tion charge  and  the  remainder  shall  each  be  seven  per 
centum  until  the  whole  amount  shall  have  been  paid. 
The  first  of  the  annual  installments  shall  become  due 
and  payable  on  December  1st  of  the  fifth  calendar  year 
after  the  initial  payment." 

The  control  of  the  irrigation  canals  passes  to  the  own- 
ers of  the  lands  to  be  maintained  and  operated  by  them 
when  they  have  paid  for  the  major  portion  of  the  lands 
irrigated  from  the  government  service.  The  title  to 
and  operation  of  the  reservoirs  remain  in  the  hands  of 
the  Reclamation  Service.  The  original  plan  was  for  the 
settlers  to  construct  the  laterals  but  this  was  found  im- 
practical and  the  government  finally  built  the  laterals. 

In  the  construction  of  reservoirs  and  canals,  it  was 
often  possible  to  develop  large  quantities  of  hydro- 
electric power  which  could  be  used  to  pump  water  to 
high  level  canals  or  sold  to  consumers  on  the  project. 


254      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  production  and  consumption  of  power  to  be  used 
in  the  pumping  of  water  has  been  found  very  economical. 
Where  the  supply  of  electricity  has  been  greater  than 
that  needed  to  pump  irrigation  water  it  has  been  sold 
to  towns  and  villages  in  the  vicinity  at  a  very  low 
price.  So  cheap  in  fact  is  it  that  consumers  in  some  sec- 
tions such  as  on  the  Minindoka  project  use  it  to  cook, 
heat  living  rooms,  and  school  houses. 

At  once  upon  the  Reclamation  Act  going  into  effect, 
the  Secretary  of  the  Interior  segregated  several  large 
tracts  of  arid  lands  and  after  proper  investigation  com- 
menced work  upon  those  that  were  feasible.  This  was 
possible  through  the  extensive  hydrographic  work  of  the 
Geological  Survey.  By  1910  it  was  obvious  that  the 
funds  on  hand  and  expected  from  the  sale  of  public 
lands  would  not  complete  the  projects  already  under- 
taken. That  year  Congress  authorized  the  general 
treasury  to  make  a  loan  of  twenty  million  dollars  to  the 
Reclamation  Service.  In  order  to  provide  these  funds 
the  Treasury  was  authorized  to  sell  certificates  of  indebt- 
edness to  secure  the  money.  The  loan  was  to  be  repaid 
to  the  Treasury  from  the  sale  of  public  lands.  It  was 
not  payable,  however,  until  1015  when  50  per  cent,  of 
the  funds  derived  from  the  sale  of  public  lands  were  to 
be  applied  to  this  purpose. 

The  water  rights  obtained  by  the  land  owner  was  made 
by  law  appurtenant  to  the  land  until  they  were  paid  for 
in  full.  The  idea  back  of  this  is  as  far  as  possible  to 
make  the  land  and  water  forever  inseparable,  to  prevent 
a  monopoly  of  the  water  ever  falling  into  the  hands  of 
an  individual  or  corporation.  The  theory  back  of  it  all 
is  fundamental  to  agricultural  success  in  arid  regions. 


KECLAMATION  SERVICE  255 

The  owner  of  the  water  is  controller  of  the  welfare  of 
the  community.     ~No  state  can  afford  to  permit  such  a 
condition   of  water  monopolies   to   arise.     Some  have 
maintained  that  a  water  right  could  not  be  made  per- 
manently appurtenant  to  the  land  even  if  it  is  to  the 
interest  of  the  public  welfare.     If  water  is  public  prop- 
erty, as  many  of  the  States  declare,  and  the  appropria- 
tion and  application  of  it  is  only  a  right  of  usage  why 
cannot  the  State  provide  how  and  where  that  right  may 
be  exercised  ?     It  would  seem  that  the  State  could  insist 
upon  the  usage  in  accordance  with  the  terms  upon  which 
the  right  was  acquired.     The  State  having  granted  an 
individual  the  right  to  use  its  property  at  a  certain  place 
and  for  a  certain  purpose  it  could  reasonably  prevent 
the  use  at  another  place  or  for  another  purpose.     It  is 
a  question  of  public  policy  whether  to  make  it  appur- 
tenant to  the  land  or  not.     ~No  doubt  it  would  be  the 
safer  policy  to  make  it  appurtenant  to  the  land  although 
it  may  be  necessary  to  permit  a  change  from  one  piece 
of  land  to  another  after  examination  by  a  competent 
board.     Such  a  policy  would  avoid  any  possibility  of  a 
water  monopoly  either  by  large  corporations  or  by  indi- 
viduals.    At  the  same  time  it  would  prevent  an  injustice 
being  done  a  water  user  whose  lands  had  become  value- 
less through  seepage  from  higher  lands.     An  owner  of 
a  piece  of  land  is  not  responsible  when  the  land  becomes 
water-logged  but  it  is  usually  an  unavoidable  condition 
arising  from  irrigation  at  higher  levels.     If  he  possessed 
or  could  obtain  by  purchase  higher  lands  the  transfer  by 
public  authority  of  the  use  of  water  could  be  made  with- 
out any  danger  and  also  without  the  user  suffering  a 
total  loss. 


256      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  following  summary  of  the  Reclamation  Service 
gives  the  area  reclaimed  by  the  government  for  the 
United  States : 

RECLAMATION  TABLE 

1917     Irrigable      Irrigated        Irrigated          Cropped         Crop 
Acreage        Acreage  Farms  Acreage         Value 

1,600,000       1,010,000         23,000  925,000     35,000,000 

Estimated  Area  of  Farms      Miles  of  Canals      Total  Cost 

Projects  on  Completion  (Gross) 

3,010,795  acres  62,451  9,970          $123,037,579.02 

Population  of  Number  of  Schools  Average  cost 

Farms  and  Towns.  per  acre. 

266,605  351  $50 

The  foregoing  has  been  a  general  discussion  of  the 
Reclamation  Act  and  policy  of  the  service  and  would  ap- 
ply equally  well  to  the  projects  outside  of  Utah  as  to 
the  one  within  the  State'.  The  discussion,  however,  has 
been  necessary  to  an  understanding  of  the  Strawberry 
Reclamation  Project  in  the  State  of  Utah. 

The  territory  of  Utah  has  always  been  interested  in 
irrigation  undertakings  for  on  it  rested  the  basis  of  its 
economic  success.  Soon  after  statehood  the  legislature 
appropriated  to  the  State  Board  of  Land  Commissioners 
three  thousand  dollars  to  determine  upon  the  feasibility 
of  the  construction  of  two  reservoirs.  The  sites  were 
to  be  selected  and  investigated  by  the  board.  The 
board  made  a  favorable  report  of  the  Strawberry  Val- 
ley Project.  A  careful  survey  revealed  the  fact  that 
while  entirely  feasible  it  was  too  costly  to  be  undertaken 
by  a  young  state.  The  estimated  cost  ran  well  over 
three  million  dollars. 


RECLAMATION  SERVICE  25 7 

When  it  became  obvious  that  the  State  could  not  un- 
dertake the  project,  the  farmers  of  Spanish  Fork  and 
Payson  undertook  to  interest  the  United  States  Reclam- 
ation Service  in  the  undertaking.  They  were  success- 
ful. Most  of  the  farmers  of  these  towns  already  had  a 
partial  supply  of  water  for  their  crops  but  needed  an 
additional  supply  to  supplement  it. 

The  Strawberry  Valley  Project  was  different  from 
several  of  the  other  United  States  projects.  Besides  in- 
volving the  excavation  of  a  long  tunnel  through  the 
mountains  the  lands  to  be  supplied  with  water  were 
located  in  the  oldest  settled  part  of  the  State.  Ninety- 
two  per  cent,  of  the  lands  were  held  in  private  owner- 
ship. Some  of  them  were  entirely  without  water  while 
others  were  partially  supplied  but  in  varying  amounts, 
from  six  to  eighteen  inches.  The  lands  when  well  sup- 
plied with  water  were  very  desirable  for  intensified 
farming. 

The  reservoir  and  water  supply  were  located  in 
Wasatch  County  on  the  east  side  of  the  Wasatch  Range 
of  mountains  and  in  the  drainage  basin  of  the  Colorado 
River.  The  lands  to  be  irrigated  were  located  in  Utah 
County  on  the  west  side  of  the  Wasatch  Range  of  moun- 
tains and  in  the  Great  Basin.  The  drainage  area  of 
the  reservoir  site  covered  about  1Y5  square  miles  with  an 
average  rainfall  of  about  21  inches.  The  Strawberry 
River  and  the  Indian  and  Trail  Hollow  Creeks  flowed 
into  the  reservoir. 

The  tunnel  that  connects  the  reservoir  and  canal  sys- 
tem supplying  the  land  is  19,897  feet  long  and  pierces 
the  mountain  at  its  greatest  depth  1400  feet  below  the 
summit.  The  tunnel  in  the  clear  is  seven  feet  wide  and 


258      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

six  and  one-half  feet  high.  It  is  lined  throughout  with 
concrete.  The  eastern  end  of  the  tunnel  has  an  eleva- 
tion of  7508  feet  above  sea  level.  The  western  end  is 
fifty-six  feet  lower.  The  capacity  of  the  tunnel  is  600 
second  feet.  The  construction  of  the  tunnel  was  begun 
in  the  fall  of  1906.  The  work  was  delayed  for  various 
reasons  and  was  not  completed  until  June  1912. 

The  dam  itself  is  an  earth-fill  structure,  72  feet  above 
the  original  river  bed.  It  has  a  reenforced  concrete  core 
wall  extending  69  feet  above  the  bed  of  the  stream  and 
from  10  to  25  feet  below  into  bed  rock.  The  dam  is 
500  feet  long  on  the  top  and  was  completed  Septem- 
ber 1913. 

From  the  western  mouth  of  the  tunnel  the  water  flows 
into  Diamond  Fork,  a  tributary  of  the  Spanish  Fork 
River.  From  the  Spanish  Fork  River  it  is  diverted 
into  some  six  different  canal  systems.  The  high  line 
canal  was  constructed  by  the  Reclamation  Service  and 
also  a  short  canal  to  supply  Mapleton.  The  others  were 
old  canals  built  many  years  ago  to  divert  the  natural 
flow  of  the  Spanish  Fork  River.  They  have  been 
owned,  controlled  and  operated  by  the  farmers  for  over 
half  a  century.  As  a  consequence  of  this  long  period  of 
ownership  and  control  they  were  left  in  charge  of  the 
farmers  and  the  Reclamation  Service  merely  took  upon 
itself  the  obligation  of  delivering  so  much  water  in  bulk 
at  the  heads  of  the  several  canals.  The  High  Line 
Canal  although  built  by  the  service  was  likewise  turned 
over  to  the  farmers  for  management. 

At  Mapleton  and  at  Springville  irrigation  districts 
were  organized  and  bonded  to  the  Reclamation  Service 
for  the  purchase  price  of  the  water  contracted  for. 


KECLAMATION  SERVICE  259 

Out  of  about  50,000  acres  either  partially  or  fully 
supplied  with  water,  only  3500  acres  were  public  lands. 
As  soon  as  the  project  was  determined  upon  a  lien  upon 
the  public  land  became  effective  for  the  water  charge. 
The  private  lands,  outside  of  those  included  in  the 
irrigation  districts  which  were  all  bonded  for  water, 
were  individually  mortgaged  to  the  United  States  Gov- 
ernment for  the  water  payments  and  the  maintenance 
and  operation  charges. 

About  three-fifths  of  the  total  area  irrigated  were  old 
cultivated  lands  and  partially  supplied  with  water. 
The  amounts  attached  to  each  tract  varied  considerably 
according  to  priority  of  appropriation.  In  view  of  this 
situation  it  was  arranged  to  sell  water  to  the  land  own- 
ers according  to  their  different  needs.  In  no  case,  how- 
ever, would  any  farmer  be  supplied  with  an  amount 
of  water  exceeding  two  acre-feet,  this  to  include  water 
received  from  all  sources.  The  lands  supplied  by  the 
High  Line  Canal  were  allowed  two  acre-feet  and  from 
crops  produced  upon  this  high  land  which  was  formerly 
very  dry  it  appears  reasonably  sufficient  although  many 
maintain  that  it  should  be  increased.  The  cost  of  the 
water  right  and  the  maintenance,  quoting  from  Six- 
teenth Annual  Keport  of  the  Eeclamation  Service  page 
292,  are  as  follows : 

Application  for  water-right. —  All  water-right  applications 
must  be  made  to  the  project  manager,  United  States  Reclama- 
tion Service,  Provo,  Utah,  upon  forms  provided  for  that 
purpose,  and  may  be  made  on  and  after  the  date  hereof.  Such 
application  may  be  made  for  one-half  acre-foot  of  water  per 
acre,  1  acre-foot  per  acre,  l1/^  acre-feet  per  acre,  or  2  acre- 
feet  per  acre,  as  the  applicant  may  desire. 

Classes    of    charges    for    water-rights. —  The    water-right 


260      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

charges  are  of  two  kinds,  to  wit:  (1)  A  charge  against  each 
irrigable  acre  to  cover  cost  of  construction  of  the  irrigation 
system,  termed  the  construction  charge;  and  (2)  an  annual 
charge  against  each  irrigable  acre  to  cover  cost  of  operation 
and  maintenance  of  the  system,  termed  the  operation  and 
maintenance  charge. 

Construction  Charges. —  The  construction  charges  for  said 
lands  are  of  four  kinds,  to  wit:  (1)  $22.50  per  irrigable  acre 
when  application  is  made  for  one-half  of  1  acre-foot  of  water 
per  irrigable  acre;  (2)  $45  per  irrigable  acre  when  application 
is  made  for  1  acre-foot  of  water  per  irrigable  acre ;  (3)  $67.50 
per  irrigable  acre  when  application  is  made  for  1^2  acre-feet 
of  water  per  irrigable  acre;  and  (4)  $90  per  irrigable  acre 
when  application  is  made  for  2  acre-feet  of  water  per  irrigable 
acre.  Such  charges  are  in  each  case  payable  as  follows : 

(a)  For  lands  that  were  entered  prior  to  August  13,  1914, 
subject  to  the  reclamation  law,  or  prior  to  that  date,  were 
subjected  by  contract,  trust  deed,  or  otherwise  to  the  pro- 
visions of  the  reclamation  law,  said  construction  charge  shall 
be  paid  in  10  equal  annual  installments,  the  first  of  which 
shall  be  paid  at  the  time  of  filing  water-right  application, 
and  subsequent  installments  shall  be  due  and  payable  Decem- 
ber 1  of  each  year  thereafter:  Provided,  however,  That  if 
water-right    application   subject    to    the   provisions    of   said 
reclamation  extension  act,  or  an  acceptance  of  the  provisions 
of  same  in  accordance  with  section  14  thereof,  be  filed  within 
six  months  from  the  date  of  this  notice,  said  construction 
charge  shall  be  paid  in  20  annual  installments  on  December  1 
of  each  year  thereafter,  in  which  event  the  first  four  install- 
ments shall  each  be  2  per  cent.,  the  next  two  installments  shall 
each  be  4  per  cent.,  and  the  next  14  each  6  per  cent,  of  the 
total  construction  charge. 

(b)  For  the  remaining  lands  an  initial  payment  of  5  per 
cent,  of  the  construction  charge  shall  be  made  at  the  time  of 
filing  water-right  application,  and  the  remainder  of  the  con- 
struction charge  shall  be  paid  in  15  annual  installments,  the 
first  5  of  which  shall  each  be  5  per  cent,  and  the  remainder 
each  7  per  cent,  of  the  total  .construction  charge.     The  first 


RECLAMATION  SERVICE  261 

of  said  15  annual  installments  shall  become  due  and  payable 
December  1  of  the  fifth  calendar  year  after  the  initial  install- 
ment, and  subsequent  installments  shall  become  due  and 
payable  on  December  1  of  each  calendar  year  thereafter. 

Increased  construction  charge  in  certain  cases. —  In  all 
cases  where  water-right  application  for  lands  in  private 
ownership,  or  for  lands  under  entries  not  subject  to  the 
reclamation  law,  shall  not  be  made  within  one  year  from  the 
date  of  this  notice,  the  construction  charge  for  such  lands 
shall  be  increased  5  per  cent,  each  year  until  such  application 
is  made  and  an  initial  installment  is  paid. 

Advance  payment  of  construction  charge  permissible. — 
Any  water-right  applicant  may,  at  his  option,  pay  in  advance 
the  whole  or  any  part  of  the  construction  charge  owing  by 
him  within  any  shorter  period  than  that  prescribed  by  this 
notice. 

Operation  and  maintenance  charge. —  The  minimum  oper- 
ation and  maintenance  charge  for  the  irrigation  season  of 
1917,  and  thereafter  until  further  notice,  shall  be  40  cents  per 
acre  of  irrigable  land,  whether  water  is  used  thereon  or  not, 
which  will  entitle  the  water  user  to  not  more  than  1  acre-foot 
of  water  per  irrigable  acre,  and  in  no  event  more  than  the 
amount  per  acre  specified  in  the  water-right  application. 
Should  water  be  needed  in  excess  of  1  acre-foot  per  irrigable 
acre  and  the  water-right  application  provides  for  more  than 
that  amount,  it  will  be  furnished  at  the  rate  of  40  cents  per 
acre-foot.  All  such  charges  will  be  payable  on  December  1  of 
each  year  for  the  preceding  irrigation  season,  but  where 
water-right  application  is  made  for  public  land  entered  under 
the  reclamation  law  after  June  15  in  any  year,  or  where 
water-right  application  is  made  for  land  in  private  ownership 
after  August  1  in  any  year,  no  operation  and  maintenance 
charge  will  be  made  for  water  delivered  during  the  remainder 
of  the  irrigation  season  in  which  the  water-right  application 
is  made. 

Net  cost  of  construction  of  project  June  30,  1918, 
$3,443,961.98.     In  general  the  purchasers  of  water  un- 


262      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

der  the  Strawberry  Valley  Project  are  very  well  satis- 
fied with  water  supplied  and  the  service  rendered.  The 
supplemental  water  supply  to  the  old  lands  has  proved 
very  beneficial  in  increasing  crop  production.  The 
charge  is  reasonable. 

All  the  lands  are  either  in  old  settled  communities  or 
near  by  and  as  a  consequence  no  great  hardships 
seemed  to  have  been  suffered  by  the  owners  of  the  dry 
lands  in  redeeming  them.  Most  of  them  were  "under 
cultivation  before  the  water  came.  So  that  in  the  main 
the  land  was  ready  for  irrigation.  Thus  the  project 
has  not  experienced  the  wholesale  shifting  of  settlers 
which  has  been  the  case  on  too  many  projects. 

Before  the  coming  of  the  water  the  dry  lands  sold 
for  $25.00  an  acre,  but  in  1917  they  rented  for  sugar 
beet  production  for  $30.00  an  acre. 

The  total  number  of  farms  receiving  water  from  the 
project  is  1812,  with  a  total  area  of  about  50,000  acres 
and  an  average  of  slightly  over  thirty  acres  to  a  farm. 
In  the  Mapleton  and  Springville  sections,  a  fruit  area, 
the  acreage  runs  from  two  to  twenty  acres  for  a  farm. 

This  section  of  the  State  is  distinctly  a  fruit  and 
sugar-beet  area.  The  more  important  fruits  grown  are 
raspberries,  cherries,  peaches,  and  apples. 

Three  sugar  factories  have  been  built  since  the  project 
was  completed  and  the  farmers  as  a  rule  are  very  pros- 
perous. They  are  fairly  well  supplied  with  horses, 
cows,  hogs  and  other  live  stock. 

In  addition  to  the  foregoing  crops,  considerable  al- 
falfa, hay  and  potatoes  are  grown  and  also  some  wheat 
and  oats.  An  electric  plant  was  installed  by  the  Rec- 
lamation Service  to  supply  power  to  the  project  and 


RECLAMATION  SERVICE  263 

power  and  light  to  the  surrounding  settlements.  Pay- 
son,  Salem,  and  Spanish  Fork  have  installed  electric 
lighting  plants  for  the  several  towns.  They  buy  the 
power  from  the  Reclamation  Service  en  bloc. 


CHAPTEE  XVI 

DRAINAGE 

Drainage  is  so  closely  associated  with  irrigation  and 
is  nearly  always  a  result  of  it  in  the  arid  parts  of  the 
United  States,  that  it  would  not  be  advisable  to  close  this 
treatise  without  a  brief  consideration  of  the  institutions 
of  drainage  in  Utah. 

Drainage  in  irrigated  areas  is  for  the  purpose  of  re- 
moving the  water  from  the  soil  which  is  already  over- 
supplied  with  moisture  and  has  thereby  lost  much  of 
its  fertility,  or  for  the  protection  of  lands  that  may  be- 
come over-supplied  with  moisture.  In  the  humid  re- 
gions, such  conditions  are  brought  about  through 
rainfall  but  in  the  arid  regions  they  are  due  in 
the  main  to  seepage  from  the  irrigation  canals  and 
also  from  irrigation  itself.  Such  a  condition  is 
almost  certain  to  arise  on  a  considerable  percent- 
age of  all  lands  irrigated,  and  for  that  reason  many 
authorities  on  irrigation  maintain  that  a  drainage 
system  should  be  planned  at  the  same  time  as  the 
irrigation  system  is  installed.  At  all  events,  its  feasi- 
bility should  be  fully  established.  If  the  irrigation 
system  is  constructed  to  supply  a  large  area  with  water, 
portions  of  it  will  soon  need  drainage. 

The  pioneer  settler  finds  it  impossible  to  stop  to  con- 
sider drainage.  The  tasks  that  will  supply  his  imme- 

264 


DRAINAGE  265 

diate  needs  of  food  and  shelter  are  ones  with  which  he 
must  concern  himself.  The  low  lands  when  free  of  min- 
erals are  usually  of  good  quality,  more  accessible  to 
water  and  the  first  to  be  cultivated  by  the  pioneer.  As 
long  as  the  lowlands  will  furnish  a  food  supply  the 
higher  lands  are  ordinarily  not  cultivated  and  there  is 
little  trouble  from  excessive  water  from  seepage. 
When,  however,  the  higher  lands  up  to  the  very  foot- 
hills are  brought  under  cultivation  and  irrigated  the 
lower  lands  frequently  through  seepage  from  above  be- 
come water-logged  and  lose  their  productivity.  This 
is  especially  true  if  a  drainage  system  is  not  provided. 
Where  the  installation  of  a  drainage  system  is  not  pos- 
sible for  various  reasons,  it  frequently  happens  that  all 
or  a  large  portion  of  these  lands  have  to  be  abandoned. 
Moreover  where  drainage  is  undertaken,  like  irriga- 
tion it  must  be  a  district  or  community  undertaking. 
It  cannot  be  installed  individually.  In  the  case  of  canal 
construction  for  irrigation  purposes  all  the  cultivators 
need  a  supply  of  water  in  order  to  produce  crops.  Irri- 
gation water  they  must  have  at  once,  and  cooperative 
action  is  comparatively  easy  to  arrange. 

Cooperative  action  is  just  as  essential  in  drainage  un- 
dertaking, but  it  is  much  more  difficult  to  obtain,  be- 
cause the  land  in  a  given  area  does  not  all  become 
water-logged  at  the  same  time.  The  process  is  a  grad- 
ual one,  where  the  low  lands  suffer  first.  It  often  takes 
years  before  all  the  lands  are  seriously  injured.  The 
higher  lands  of  any  given  area  are  the  last  to  suffer  and 
it  is  difficult,  if  not  impossible,  to  secure  the  consent  of 
the  owners  of  these  lands  for  drainage.  In  fact  it  has 
been  found  impossible  to  proceed  on  the  basis  of  individ- 


266      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

ual  consent.  The  Western  States  therefore  have  been 
compelled  to  enact  laws  creating  irrigation  districts 
wherein  a  certain  percentage  of  land  involved  determines 
the  action  to  be  taken.  Although  there  is  some  variance, 
ordinarily  a  majority  of  the  acreage  decides  whether 
a  district  is  to  be  organized  or  not.  The  individual 
owner  cannot  determine  the  policy  to  be  pursued  only  in 
so  far  as  his  land  is  a  part  of  the  whole. 

In  Utah  it  was  many  years  before  any  legal  means 
were  provided  for  establishing  drainage  districts.  What 
was  done  was  confined  to  individual  or  voluntary  coop- 
erative actions.  This  was  not  due  to  the  fact  that  there 
was  not  a  necessity  for  the  drainage  of  farm  lands,  quite 
to  the  contrary,  but  rather  to  a  want  of  an  appreciation 
of  what  drainage  would  accomplish. 

In  1896,  the  first  state  legislature  passed  a  law  mak- 
ing provisions  for  the  organization  of  drainage  districts. 
The  law  authorized  the  county  commissioners  to  or- 
ganize a  district  upon  the  petition  of  fifty  or  more  land 
owners,  constituting  a  majority  of  the  land  owners  of 
the  proposed  drainage  district.  Before  action  could  be 
taken  upon  the  petition  it  was  necessary  to  advertise  it 
for  fourteen  days  in  some  newspaper  having  general 
circulation  in  the  county.  At  the  public  hearing,  upon 
petition,  new  lands  not  included  in  the  original  petition 
could  be  included  or  lands  which  would  not  be  benefited 
could  be  excluded.  If  it  was  decided  by  the  county 
commissioners  to  call  an  election  a  description  of  the 
lands  to  be  included  in  the  proposed  district  must  be 
included  in  the  call.  At  the  election  a  favorable  ma- 
jority of  two-thirds  of  all  the  votes  cast  was  necessary 
to  create  a  district.  Only  freeholders  living  in  the  dis- 


DRAINAGE  267 

trict  were  entitled  to  vote.  A  board  of  directors  were 
elected  at  the  time  tlie  question  of  the  district  was 
passed  upon. 

The  directors  organized  by  electing  a  president,  sec- 
retary, treasurer  and  such  other  officers  and  employees 
as  were  necessary. 

The  money  for  the  construction  and  maintenance  of 
the  drainage  system  was  to  be  raised  by  taxation.  An 
estimate  of  the  amount  required  for  the  ensuing  year 
was  to  be  made  by  the  board  before  the  first  of  March 
of  each  year.  The  law  provided  that,  after  having 
entered  the  valuation  of  property  on  the  assessment 
books  the  auditor  of  the  county  should  levy  such  per 
cent,  as  would  raise  the  amount  required  by  the  board, 
which  levy  must  be  uniform  on  all  lands  within  the  dis- 
trict as  returned  on  the  assessment  roll.  The  county 
treasurer  was  also  authorized  and  required  to  collect 
district  taxes.  The  tax  could  not  exceed  one  per  cent, 
of  the  value  of  the  land  in  one  year.  The  Board  of 
County  Commissioners  were  to  act  as  a  board  of  equali- 
zation for  the  district.  The  taxes  were  a  lien  on  the 
land. 

The  work  of  construction  of  a  drainage  system  could 
be  done  by  the  district  or  by  contract, 

Nothing  was  done  under  this  law.  The  price  of  good 
land  in  most  parts  of  the  State  at  that  date  rarely 
exceeded  a  hundred  an  acre  and,  in  general,  the  price 
was  far  below.  Water-logged  lands  were  valued  far 
below  the  above  price  so  that  one  per  cent,  of  their 
value  would  afford  only  a  negligible  sum  toward  drain- 
age which  cost  from  ten  to  forty  or  fifty  dollars  an 
acre. 


268      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  act  of  1905  was  a  re-enactment  of  the  law  of  1896 
in  every  particular  except  a  provision  for  bonding  the 
district  was  incorporated  in  the  law.  The  bonding  ca- 
pacity of  the  district  was  limited  to  three  dollars  an  acre. 
The  time  limit  of  the  bonds  was  fixed  at  twenty  years 
and  the  interest  was  not  to  exceed  six  per  cent.  The 
annual  estimate  for  maintenance,  where  bonds  had  been 
issued,  must  contain  items  for  interest  and  sinking 
fund. 

The  act  of  1907  changed  the  bonding  ability  of  the 
district  for  drainage  purposes  from  three  dollars  per 
acre  to  four  per  cent,  of  the  value  of  the  taxable  prop- 
erty of  the  district.  Taxes  for  construction  and  main- 
tenance were  to  be  levied  upon  each  acre  according 
to  the  benefits  derived  instead  of  according  to  the  value 
of  the  property.  The  board  of  trustees  of  the  district 
constituted  the  board  of  assessment  and  also  the  board 
of  equalization.  When  the  district  board  had  com- 
pleted its  work  of  assessment  and  equalization,  it  was 
required  to  transmit  a  list  of  the  assessed  property  to 
the  county  auditor  who  was  required  to  enter  it  on  the 
county  tax  books.  When  this  was  done  it  became  the 
duty  of  the  county  treasurer  to  collect  the  district  taxes 
at  the  same  time  as  the  regular  county  and  State  taxes 
were  collected.  In  Argyle  v.  Johnson  (1911,  1180 
Pac.  487),  the  drainage  law  was  declared  unconstitu- 
tional for  various  reasons:  First,  the  law  did  not  pro- 
vide any  means  for  a  landowner  to  have  a  hearing  to 
determine  whether  his  land  would  be  benefited  by  the 
proposed  system  of  drainage.  Secondly,  the  law  gave 
the  county  commissioners  power  to  include,  upon  re- 
quest, lands  which  would  be  benefited  but  which  were 


DRAINAGE  269 

not  embraced  in  the  original  petition,  but  it  did  not 
give  the  commission  authority  to  exclude  lands  which 
would  not  be  benefited.  Thirdly,  a  landowner  within 
the  district  must  be  an  elector  in  the  district  before  he 
could  vote  on  the  issuance  of  bonds  which  were  to  be- 
come a  lien  upon  his  lands.  So  that  a  man  owning 
land  within  the  district  but  living  outside  had  nothing 
to  say  about  obligations  which  would  become  a  lien  upon 
his  land;  finally  no  opportunity  was  afforded  to  bring 
any  of  the  foregoing  questions  before  a  court  for  a 
determination.  As  a  consequence  the  Supreme  Court 
of  Utah  declared  the  law  of  1907  unconstitutional  as 
taking  private  property  without  due  process  of  law  for 
the  reason  that  owners  of  land  were  not  given  a  right 
of  a  hearing  before  a  competent  tribunal  to  determine 
whether  the  drainage  was  beneficial  to  their  lands  or 
the  tax  levied  was  an  equitable  one. 

The  act  of  1913  was  very  similar  in  many  respects  to 
the  1907  act  except  that  an  effort  was  made  to  overcome 
the  difficulties  which  made  the  old  law  unconstitutional. 
Section  5  gave  the  County  Commissioners  authority  to 
hold  a  hearing  and  to  exclude  lands  which  in  their 
judgment  will  not  be  benefited  by  the  proposed  system 
of  drainage.  From  this  decision  an  appeal  lay  to  the 
district.  While  the  act  as  a  whole  was  clearly  drawn, 
the  Supreme  Court  in  Moody  vs.  Millard  County  Drain- 
age District  Number  1  et  al.  held  that  the  language  in 
Section  2  was  so  indefinite  as  to  make  procedure  uncer- 
tain in  the  issuance  of  bonds.  The  district  was  therefore 
prohibited  from  issuing  bonds.  The  drainage  act  of 
1915  was  passed  to  remedy  the  defects  in  the  act  of 
1913. 


270      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

The  primary  features  of  the  drainage  legislation  now 
on  the  statute  books  of  the  State  may  be  outlined  as 
follows :  a  majority  of  the  landowners  who  own  a  third 
of  the  area  of  the  proposed  district  or  a  third  of  the 
landowners  who  own  a  majority  of  the  lands  to  be  re- 
claimed may  petition  the  county  commissioners  to  or- 
ganize a  drainage  district.  After  proper  notice  has 
been  given  for  twenty-one  days  the  county  commis- 
sioners are  required  to  give  the  petition  a  hearing.  At 
the  conclusion  of  the  hearing  the  commission  has  au- 
thority to  exclude  lands  which  will  not  be  benefited  by 
a  drainage  system  and  likewise  to  include,  upon  petition, 
lands  which  will  be  benefited,  but  which  were  not  in- 
cluded in  the  original  petition.  The  action  of  the 
county  commission  is  subject  to  review  by  a  district 
court  if  an  appeal  is  taken  within  six  months  after  the 
commission  acts. 

A  board  of  three  supervisors  is  appointed  by  the 
board  of  County  Commissioners.  The  board  of  super- 
visors when  organized  is  the  governing  body  of  the  dis- 
trict. It  has  authority  to  employ  an  engineer,  and  as- 
sistants, to  make  contracts,  and  to  do  other  things  within 
the  power  of  the  corporation. 

It  is  the  duty  of  the  supervisors  upon  entering  on 
their  duties  to  examine  carefully  all  of  the  lands  of 
the  proposed  drainage  area  and  the  routes  of  the  pro- 
posed drains;  to  make  an  estimate  of  the  original  cost 
and  the  maintenance  of  the  system  and  to  determine 
whether  the  benefits  of  the  system  will  more  than  equal 
the  damages  done.  When  this  report  is  completed,  it  is 
forwarded  to  the  board  of  county  commissioners.  If 
the  damages  of  open  canals  and  the  injury  by  flooding 


DRAINAGE  271 

lower  lands  outweigh  the  benefits  derived  the  district 
is  abandoned. 

In  assessing  the  lands,  the  law  says  that  the  board  of 
supervisors  "  shall  assess  the  entire  amount  needed  in 
each  year  against  all  the  land  within  said  district  in 
proportion  to  the  benefits  resulting  to  each  tract  of  land 
by  the  construction  and  maintenance  of  such  drainage 
system;  the  said  board  of  supervisors  shall  view  each 
tract  of  land  within  the  district  and  shall  carefully  con- 
sider all  the  damages  and  benefits  that  each  particu- 
lar tract  of  land  will  receive  from  the  construction 
and  maintenance  of  such  drainage  system  and  assess 
each  tract  of  land  in  accordance  with  the  benefits  re- 
ceived by  it,  making  proper  allowance  for  damages  if 
there  be  any. 

The  board  of  county  commissioners  acts  as  a  board  of 
equalization  for  the  district  to  adjust  inequalities. 

The  tax  when  assessed  becomes  a  lien  upon  the  real 
property. 

The  construction  of  drains  must  be  done  by  contract. 
Twenty  days'  notice  for  proposals  to  do  the  work  must 
be  given  in  a  newspaper  having  general  circulation  in  the 
district. 

The  law  authorizes  the  bonding  of  the  district  but 
says  "  that  in  no  case  shall  the  amount  of  bonds  exceed 
the  benefits  assessed.77  Before  bonds  can  be  issued  they 
must  be  approved  at  an  election  by  a  majority  vote  of 
the  land  owners  of  the  district.  The  law  provides  that 
the  rate  of  interest  on  the  bonds  shall  not  exceed  seven 
per  cent,  per  annum.  The  bonds  may  run  for  not  less 
than  ten  nor  more  than  twenty  years.  When  issued  they 
become  a  lien  upon  the  land. 


272      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

The  remainder  of  the  act  deals  with  methods  of  pro- 
cedure which  are  common  to  all  public  corporations. 

The  new  law  of  1919  in  the  main  is  a  re-enactment  of 
the  laws  of  1913  and  1915.  Several  minor  amendments 
were  made  to  make  clear  the  diction.  There  are  how- 
ever two  important  new  provisions.  Section  2047  pro- 
vides for  entering  into  drainage  contracts  with  the 
United  States.  It  is  enacted  undoubtedly  in  the  ex- 
pectation that  the  Federal  Government  will  make  pro- 
visions for  advancing  funds  for  drainage  construction. 
It  reads  as  follows:  "  The  board  (of  supervisors)  shall 
have  power  to  enter  into  any  obligation  or  contract  with 
the  United  States  under  any  act  of  Congress  now  en- 
acted, or  which  may  hereafter  be  enacted,  and  the  rules 
and  regulations  established  thereunder,  for  the  con- 
struction or  operation  and  maintenance  of  the  drainage 
system  or  any  drainage  works,  or  as  principal  guarantor 
of  indebtedness  to  the  United  States  on  account  of  dis- 
trict lands." 

The  second  important  provision  provides  that  the 
courts  are  authorized  to  pass  upon  the  legality  of  drain- 
age bonds  or  proposed  contracts  with  the  United  States 
upon  the  request  of  the  board  of  supervisors  or  any  in- 
terested party.  This  provision  is  a  wise  one  as  it  makes 
it  possible  to  establish  the  legality  of  the  bonds  before 
they  are  issued  or  the  contract  for  the  work  before  it  is 
undertaken. 

Although  many  parts  of  the  State  are  in  need  of 
drainage  up  to  the  present  not  much  has  been  accom- 
plished. 

The  following  tabulation  gives  the  projects  underway 
and  completed.  Outside  of  individual  undertakings 


DRAINAGE  273 

none  are  complete  although  the  Corinne  system  is  almost 
complete.     Drainage  cost  from  $20  to  $100.00  an  acre : 

NAME  AREA 

Individual  Tracts  6,000  Acres 

Box  Elder  County 

Corinne  Drainage  District 12,000  Acres 

Millard  County 

Hinckley No.  1  52,000  Acres 

District  No.  2  22,000  Acres 

District No.  3  44,000  Acres 

District No.  4  10,000  Acres 

Delta  South  Tract 4,554  Acres 

Salt  Lake  County 

Brighton  Drainage  District 4,080  Acres 

Sevier  County 

Sevier  County  Drainage  District  No.  1  4,500  Acres 

Sevier  County  Drainage  District  No.  2  2,600  Acres 

Sevier  County  Drainage  District  No.  3  1,361  Acres 

Utah  County 

Lake  Shore  and  Benjamin  Drainage  District . . .  3,050  Acres 

Lake  Shore  Drainage  District 3,050  Acres 

Lake  Shore  and  North  Drainage  District 631  Acres 

Utah  County  Drainage  District  No.  1 3,000  Acres 


CHAPTER  XVII 

THE   LEGISLATION   OF    1919 

In  the  1919  session  of  the  Utah  Legislature,  three  im- 
portant measures  pertaining  to  irrigation  and  drainage 
were  passed,  (a)  The  Water  Eights  Law,  (b)  The  Irri- 
gation District  Law  and  (c)  The  Drainage  Law.  The 
drainage  law  has  been  dealt  with,  so  far  as  is  necessary, 
in  Chapter  XVI.  The  discussions  in  this  chapter  will, 
therefore,  be  confined  to  the  Water  Rights  Law  and  the 
Irrigation  District  Law.  Moreover,  only  the  main  pro- 
visions of  these  laws  will  be  considered  in  the  discussion. 
Many,  in  fact  most  of  the  provisions,  are  only  re-enact- 
ments of  similar  provisions  already  in  force.  Some  are 
an  evolution  of  provisions  in  force  and  the  others  are 
entirely  new  to  Utah.  Where  the  provisions  are  in 
force  and  have  been  discussed  in  previous  chapters  they 
will  be  merely  mentioned  or  ignored  unless  in  some  way 
they  present  new  faces  of  irrigation  problems. 

WATEK    EIGHTS 

In  one  particular  the  new  Water  Rights  Law  is  a 
departure  from  former  legislation  within  this  common- 
wealth. It  follows  rather  closely  the  Oregon  system  in 
the  adjudication  of  water  rights,  except  it  replaces  the 
water  commission  by  the  State  Engineer.  It  places  the 
authority  to  make  the  preliminary  investigation  and  de- 

274 


THE  LEGISLATION  OF  1919  275 

termination  of  water  rights  under  the  State  Engineer. 
It  centers  this  great  power  in  his  hands,  and  thereby 
makes  it  possible  for  him  to  do  much  in  regard  to  water 
adjustment  in  the  State.  Finally  the  State  has  begun 
a  policy  of  concentration  with  a  view  of  securing  re- 
sults in  the  way  of  determining  the  respective  rights  of 
the  users  of  water  throughout  the  State.  It  is  both  the 
privilege  and  the  duty  of  the  State  Engineer  actively  to 
undertake  the  work  and  bring  the  results  before  the 
courts  for  final  determination.  If  the  work  of  the 
State  Engineer  is  carefully  and  tactfully  done  it  should 
lessen  the  work  of  the  courts  considerably. 

Water  running  in  well  known  and  defined  channels  is 
the  property  of  the  public  subject  to  beneficial  use. 

Persons  or  corporations  desiring  to  construct  canals 
can  obtain  rights  of  way  by  the  law  of  eminent  domain 
upon  private  lands.  The  owner  of  the  lands,  however, 
must  be  adequately  compensated  for  land  and  damages. 
Where  there  are  canals  already  in  existence  which  will 
serve  the  purpose  appropriators  of  water  may  enlarge 
them  to  convey  additional  water.  They  must,  how- 
ever, bear  the  cost  of  construction.  In  many  cases  this 
makes  the  building  of  new  canals  unnecessary  and  pre- 
vents considerable  damages,  thereby,  to  good  arable 
lands. 

In  the  old  law,  the  period  of  abandonment  of  a  water 
right  was  fixed  at  seven  years,  the  new  law  reduces  it 
to  five  years.  Even  five  years  is  a  long  time  to  allow 
the  use  of  water  to  remain  in  an  uncertain  condition 
in  the  arid  region.  The  writer  feels  certain  that  the 
future  will  see  the  period  of  time  considerably  reduced. 

The  term  of  office  of  the  State  Engineer  is  extended 


276      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

from  four  to  six  years  and  the  salary  raised  from  $3,000 
to  $4,000  a  year. 

Under  the  old  law  the  State  Engineer,  as  already  in- 
dicated in  previous  discussions,  had  authority  to  measure 
the  streams  and  make  other  determinations,  but  there 
his  power  ended.  He  could  present  his  conclusions  to 
the  courts  but  they  could  be  and  were  ignored  without 
an  exception.  In  the  1919  law  section  7  provides  that 
the  State  Engineer  shall  have  "  general  administrative 
supervision  of  the  water  of  the  State  and  of  their  meas- 
urement, appropriation,  apportionment  and  distribu- 
tion. He  shall  have  power  to  make  and  publish  such 
rules  and  regulations  as  may  be  necessary  from  time 
to  time  fully  to  carry  out  the  duties  of  his  office  and 
particularly  to  secure  the  equitable  and  fair  apportion- 
ment and  distribution  of  the  water  according  to  the  re- 
spective rights  of  the  appropriators."  Section  20  fur- 
ther defines  his  duties  as  follows :  "  Upon  a  verified  peti- 
tion to  the  State  Engineer,  signed  by  five  or  more  water 
users  upon  any  stream  or  water  source  requesting  the 
determination  of  the  relative  rights  of  the  various  claim- 
ants to  the  waters  of  such  streams  or  water  source,  it 
shall  be  the  duty  of  State  Engineer,  if  upon  investiga- 
tion he  finds  the  facts  and  conditions  are  such  as  to 
justify,  to  make  a  determination  of  said  rights  fixing 
a  time  for  making  such  examination  and  taking  such 
testimony  as  will  enable  him  to  determine  the  rights  of 
the  various  claimants."  This  makes  it  very  easy  to  set 
the  official  machinery  in  motion  to  secure  a  determina- 
tion of  water  rights.  It  should  be  very  easy  to  secure 
five  petitioners.  The  section,  however,  embodies  a 
menacing  phrase  where  it  says  "  the  determination  of 


THE  LEGISLATION  OF  1919  277 

the  relative  rights,  etc."  This  may  make  it  possible, 
where  there  are  no  contestants,  for  the  users  of  a  stream 
to  have  all  the  water  allotted  to  them,  even  if  far  in 
excess  of  their  actual  needs,  in  case  the  court  holds  that 
the  engineer  has  only  the  authority  to  determine  their 
relative  rights.  The  interpretation  of  this  section  by 
the  courts  will  be  watched  with  considerable  interest, 
for  it  may  well  destroy  much  of  the  value  of  the  law 
wherein  it  attempts  to  limit  the  users  of  water  to  their 
economic  and  beneficial  use  irrespective  of  their  claims. 
When  the  work  of  surveying  the  land  and  streams 
is  complete,  the  State  Engineer  presents  to  the  clerk 
of  the  district  court  a  report,  giving  the  names,  addresses, 
acreage,  use  and  allotments  of  water  in  the  district. 
With  the  report  before  him  it  becomes  the  duty  of  the 
clerk  to  notify  all  users  of  water  of  the  conclusions  of 
the  engineer.  On  the  other  hand  if  a  water  suit  is 
filed  in  a  district  court  the  clerk  is  required  to  notify  the 
State  Engineer  whose  duty  it  then  becomes  to  measure 
the  water  and  the  lands  of  the  several  users  and  report 
the  result  to  the  clerk  of  the  court  together  with  the 
names,  addresses  and  allotments  made  to  them. 
Whether  the  action  is  initiated  by  the  State  Engineer  or 
by  the  water  users,  the  water  users  have  the  right  to 
appeal  from  the  conclusions  of  the  State  Engineer  to 
the  district  court  and  on  up  to  the  Supreme  Court.  If, 
however,  the  appeal  is  not  taken  within  a  given  time  the 
court  enters  a  decree  affirming  the  determinations  and 
apportionments  of  the  State  Engineer.  If  the  water 
users  do  appeal  from  the  conclusions  of  the  State  Engi- 
neer the  court  proceeds  to  try  the  case  according  to 
ordinary  procedure. 


278      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

A  re-determination  of  the  water  rights  may  be  had 
at  any  time  on  the  application  of  a  water  user,  who 
must  accompany  the  application  for  a  re-determination 
by  a  bond  in  double  the  amount  of  the  estimated  costs. 
If  the  decision  goes  against  the  applicant  he  must  pay 
the  entire  costs.  The  bond  is  to  insure  the  payment  of 
costs. 

New  appropriations  of  water  can  only  be  made  on 
application  to  the  office  of  the  State  Engineer.  The 
application  must  describe  the  stream,  the  source,  the 
point  of  diversion,  the  use  and  the  quality  of  water 
applied  for.  Before  the  application  can  be  approved 
notice  must  be  published  in  a  newspaper  having  general 
circulation  in  the  district  where  the  water  is  located. 
The  State  Engineer  is  authorized  to  make  such  exami- 
nations, surveys  and  give  such  hearings  as  will  satisfy 
him  as  to  the  justness  of  the  application.  At  the  con- 
clusion of  the  examination  he  may  grant  the  application 
or  he  may  deny  it,  if  it  infringes  upon  existing  rights. 
Following  a  similar  procedure  a  user  of  water  may 
change  the  point  of  diversion  or  the  use  of  the  water, 
but  no  change  of  the  point  of  diversion  or  the  use  can 
be  made  to  the  injury  of  any  user.  Where  an  applica- 
tion is  granted  if  it  involves  the  construction  of  a  new 
canal  the  construction  must  begin  within  six  months  and 
be  pursued  with  reasonable  diligence.  In  all  cases  de- 
cided by  the  State  Engineer  appeal  lies  to  the  District 
Court. 

Water  may  be  turned  into  a  natural  channel  or  in  a 
reservoir  and  taken  out  again,  due  allowance  being 
made  for  loss  through  seepage,  evaporation  and  the  like. 
Of  course  the  permission  is  dependent  upon  the  capacity 


THE  LEGISLATION  OF  1919  279 

of  the  channel  or  the  reservoir  to  retain  the  additional 
flow  of  water  with  safety  and  in  the  case  of  a  reservoir 
a  proportionate  part  of  the  cost  of  construction  must 
naturally  be  borne. 

Priority  of  appropriation  is  a  rule  which  governs 
in  the  use  of  water. 

Irrigation  or  reservoir  companies  may  own  stock  in 
other  irrigation  or  reservoir  companies. 

If  for  any  reason  it  becomes  impracticable  to  use 
water  beneficially  on  a  piece  of  land  where  it  has  been 
used,  it  may  be  transferred  to  other  lands,  "  if  such 
change  can  be  made  without  detriment  to  existing 
rights." 

The  law  still  retains  the  provision  which  allows  the 
user  of  water  to  regard  his  right  as  personal  property. 

The  District  Court  or  the  State  Engineer  is  author- 
ized to  appoint  a  water  commissioner.  In  general,  how- 
ever, it  is  the  duty  of  the  State  Engineer  and  his 
assistants  to  carry  into  effect  the  judgments  and  decree 
of  the  courts  in  relation  to  the  diversion,  allotments,  dis- 
tribution and  use  of  the  waters  of  the  State. 

In  order  to  protect  life  and  property  against  poorly 
constructed  dams  in  streams  or  reservoirs,  the  plans, 
specifications  and  drawings  are  subject  to  the  approval 
of  the  State  Engineer.  Some  recent  failures  of  dams 
have  made  such  a  course  necessary.  The  law  says  that 
"  dams  above  ten  feet  in  height  or  any  dam  less  than 
ten  feet  in  height  which  will  impound  more  than  one 
hundred  acre  feet  of  water "  shall  be  subject  to  the 
approval  of  the  State  Engineer.  He  is  also  empowered 
to  supervise  all  dams  during  their  construction.  If  the 
requirements  are  not  lived  up  to  he  is  authorized  to  sus- 


280      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

pend  operation.  In  the  case  of  dams  already  built  he 
has  authority  to  limit  the  amount  of  water  impounded 
or  if  unsafe  to  forbid  the  storage  of  water  entirely. 

IRRIGATION  DISTRICTS 

On  the  petition  of  fifty  or  a  majority  of  the  land- 
owners or  upon  the  request  of  the  Governor  of  the  State 
the  county  commissioners  may  take  the  necessary  steps 
to  organize  an  irrigation  district.  The  petition  of  the 
landowners  must  be  accompanied  by  a  bond  sufficient  in 
amount  to  pay  the  cost  of  organizing,  so  that  if  the 
land  owners  when  they  vote  upon  the  question  of  estab- 
lishing a  district  should  decide  in  the  negative  the  county 
would  be  protected  against  loss.  In  case  the  request, 
coming  from  the  Governor  is  decided  in  the  negative 
by  the  landowners,  one-half  of  the  cost  is  borne  by  the 
county  and  one-half  by  the  State.  There  is  no  reason 
in  the  world  why  this  power  should  be  granted  to  the 
Governor  of  the  State.  The  establishment  of  a  dis- 
trict is  a  matter  that  concerns  the  landowners  and  the 
landowners  alone.  If  they  want  it  they  can  petition 
for  it  and  if  they  do  not  want  it  the  initiative  of  the 
Governor  will  not  help  because  they  will  vote  it  down 
and  a  needless  expense  will  have  been  incurred. 

On  the  receipt  of  the  petition,  the  county  commis- 
sioners must  make  a  water  survey  and  allotment  of 
water  district.  "  The  survey  is  made  for  the  purpose 
of  determining  and  alloting  the  maximum  amounts  of 
water  which  could  be  beneficially  used  upon  such  lands ; 
each  forty  acre  or  smaller  tracts  in  separate  ownership 
shall  be  separately  surveyed  and  the  allotment  made 
therefore."  The  foregoing  work  at  the  request  of  the 


THE  LEGISLATION  OF  1919  281 

county  commission  is  to  be  done  by  the  State  Engineer. 
When  the  work  is  completed,  he  must  file  his  report  with 
the  commissioners.  They  are  then  required  to  give 
notice  through  a  newspaper  of  their  intention  to  organ- 
ize an  irrigation  district  and  that  at  a  certain  fixed  time 
a  hearing  will  be  held  at  which  the  landowners  may 
appear  before  them  and  ask  that  their  lands  shall  be 
included  or  excluded  in  the  proposed  district.  In  a  re- 
quest for  the  exclusion  of  lands  from  the  proposed  dis- 
trict the  owners  must  show  that  they  already  have 
sufficient  water  to  supply  their  needs  or  that  they  will 
not  be  benefited  by  the  new  system.  On  the  other 
hand,  lands  not  included  in  the  original  petition  may 
be  included  upon  the  petition  of  the  owners.  At  the 
completion  of  the  hearing,  the  commissioners  are  re- 
quired to  prepare  a  plat  of  the  lands  to  be  included. 
An  appeal  from  the  conclusions  of  the  county  commis- 
sion lies  to  the  District  Court. 

As  soon  as  the  lands  are  listed  and  platted,  the 
county  commission  calls  an  election  at  which  the  land- 
owners decide  by  ballot  whether  they  desire  a  district 
or  not.  A  majority  of  the  votes  cast  decides  the  ques- 
tion. The  number  of  votes  cast  by  each  landowner  is 
determined  by  the  allotment  of  water  made  to  him  by 
the  State  Engineer.  He  is  allowed  to  cast  one  vote 
for  each  acre-foot  of  water  or  fraction  thereof.  Direc- 
tors are  voted  for  at  the  same  time  and  if  the  vote  is 
favorable  to  the  organization  of  a  district  they  proceed 
to  organize  to  carry  on  the  work.  For  administrative 
purposes  the  district  is  divided  into  three  sub-districts 
and  one  director  is  elected  from  each  subdivision. 

In  section  11  the  law  says  that  "  upon  completion  of 


282      DEVELOPMENT  OF  INSTITUTIONS  UNDER  IRRIGATION 

the  organization  of  the  district  and  before  any  bond  is- 
sue or  contract  is  voted  on,  any  assessment  levied,  or 
toll  or  charge  imposed,  the  board  of  directors  having 
first  determined  the  amount  of  water  required  for  the 
land  within  the  district  and  the  amount  of  water  avail- 
able for  use  of  the  district,  shall  make  a  final  allotment 
of  water  for  each  forty-acre  tract  or  smaller  tract  in 
separate  ownership,  which  allotment  for  each  tract 
shall  not  be  less  than  its  proportion  of  the  engineering 
allotment  as  a  basis;  such  allotment  may,  however,  be 
increased  to  an  amount  not  exceeding  the  amount  allotted 
by  the  State  Engineer  should  the  amount  of  water  avail- 
able for  the  district  be  increased.  Such  final  allotment 
shall  be  the  basis  for  all  assessments,  tolls,  and  charges 
levied  against  the  land  and  shall  also  thereafter  be  the 
basis  of  the  vote  at  all  elections." 

The  board  of  directors  with  the  approval  of  the  land- 
owners may  purchase  a  system  already  in  existence  or 
enter  into  a  contract  for  water  with  the  United  States 
Government. 

Near  the  end  of  section  11  is  found  the  following 
provision :  "  The  board  of  directors  shall  have  power  to 
lease  or  rent  the  use  of  water  not  needed  by  the  land- 
owners of  said  district."  The  lease  is  not  allowed  to 
run  for  longer  than  five  years.  A  similar  provision  was 
found  in  earlier  laws,  but  the  term  of  the  lease  could 
not  exceed  one  year.  This  undoubtedly  is  intended  to 
cover  a  temporary  arrangement  until  such  user  of  water 
can  be  admitted  into  the  district.  The  provision,  how- 
ever, does  open  the  way  for  a  district  to  speculate  in 
water.  For  the  district  can  refuse  to  admit  the  land- 
owners using  the  leased  water  into  the  district  and  make 


THE  LEGISLATION  OF  1919  283 

them  perpetually  dependent  upon  these  short  term 
leases  which  are  destructive  of  the  establishment  of  per- 
manent agriculture.  It  is  even  questionable,  on  a  five 
year  lease,  whether  a  landowner  would  be  justified  in 
preparing  the  land  for  irrigation  upon  such  a  short 
term.  He  could  not  afford  to  reclaim  a  difficult  piece 
of  land.  The  provision  as  it  now  stands  is  so  vicious 
that  it  should  be  recast  or  repealed,  because  it  is  against 
home  building  and  in  favor  of  commercialism  in  water. 

The  district  may  issue  bonds  for  the  purchase  or  con- 
struction of  an  irrigation  system.  Before  bonds  can  be 
issued  they  must  be  approved  by  a  two-third  majority 
vote  at  a  special  election.  The  bonds  may  run  for 
forty  years.  Upon  the  application  of  the  board  of 
directors  or  any  interested  party,  the  legality  of  the 
entire  proceedings  pertaining  to  the  issue  of  the  bonds 
can  be  reviewed  by  the  courts  before  the  bonds  are  sold. 

An  annual  estimate  of  the  funds  needed  to  conduct 
the  business  of  the  district  must  be  prepared  by  board 
of  directors  before  April  the  first.  The  estimate  must 
include  maintenance,  interest,  rentals,  improvements, 
etc.  It  becomes  the  duty  of  the  County  Assessor  to 
assess  such  levies  against  the  lands  of  the  district  upon 
the  basis  of  "  the  value  per  acre-foot  of  water  allotted  to 
the  lands  within  the  district."  Where  levies  are  made 
to  provide  funds  to  carry  out  contracts  entered  into  with 
the  United  States  Government  assessments  must  be  made 
according  to  the  Federal  laws.  Upon  the  completion  of 
the  assessment  it  is  the  duty  of  the  county  commissioners 
to  fix  a  rate  that  will  raise  the  required  revenue.  The 
revenue  laws  of  the  State  apply  in  the  collection  of  the 
district  taxes. 


284      DEVELOPMENT  OP  INSTITUTIONS  UNDER  IRRIGATION 

In  the  construction  of  a  new  system  the  work  must 
be  done  by  contract. 

In  case  of  an  insufficiency  of  water  the  board  of 
directors  must  distribute  it  "  upon  alternate  days  to 
different  localities  as  they  in  their  judgment  think  best 
for  all  parties  concerned." 

Section  30  of  the  law  also  provides  that  after  a 
district  has  been  organized  lands  may,  under  certain 
conditions,  be  included  or  excluded. 

The  board  is  authorized,  where  necessary,  to  construct 
drains  to  protect  water-logged  areas  of  the  district. 

It  was  said  of  the  first  irrigation  district  law  of  the 
territory  of  Utah  that  it  was  too  short  to  be  workable. 
Such  criticism  could  not  possibly  apply  to  the  present 
law,  because  it  is  so  lengthy  as  to  be  almost  unwieldy. 
Except  the  allotment  of  water  by  the  State  Engineer  and 
the  board  of  directors  there  is  no  new  principle  in- 
volved in  the  act.  The  law  in  section  2  provides  for 
a  survey  "  for  the  purpose  of  determining  and  allotting 
the  maximum  amounts  (of  water)  which  could  be  bene- 
ficially used  on  such  lands."  This  provision  would  have 
more  nearly  conformed  to  present  day  tendencies  in 
the  Western  States  if  it  had  provided  for  the  amount  of 
water  necessary  for  economic  and  beneficial  use. 

The  law  as  it  stands  offers  very  little  more  protection 
for  bond  holders  than  the  old  law. 

A  law  for  irrigation  districts  which  expect  to  float 
bonds,  should  contain  provisions  providing  for  means 
of  supplying  definite  information  as  to  the  quantity 
of  water  to  be  supplied  by  the  system  to  each  acre, 
together  with  the  quality  of  the  water,  particularly  as 
to  its  mineral  content.  A  soil  survey  should  be  re- 


THE  LEGISLATION  OF  1919  285 

quired  and  the  agricultural  quality  of  the  land 
specifically  set  forth.  In  the  same  survey  it  should  be 
determined  whether  there  were  any  minerals  in  the 
soil  which  would  injuriously  affect  crop  production. 
The  danger  of  the  lands  becoming  water-logged  and 
the  possibility  of  installing  drainage  should  be  passed 
upon.  The  capacity  and  durability  of  the  proposed 
irrigation  system  to  give  the  service  required  should 
be  established  beyond  a  reasonable  doubt.  Finally  the 
State  should  supervise  the  expenditure  of  the  funds, 
so  that  the  purchasers  of  the  securities  of  irrigation 
districts  will  be  reasonably  well  assured  that  the  funds 
will  be  used  for  the  purchase  of  water  rights  or  a  water 
system  or  for  the  construction  of  dams  and  canals  and 
not  for  promotion  and  speculative  purposes. 

Until  these  or  similar  provisions  are  written  into  the 
law,  the  purchasers  of  irrigation  district  bonds  can  have 
no  assurance  of  their  value  unless  they  are  prepared  to 
make  extensive  investigations  on  their  own  account. 


INDEX 


Acts,  53,  54 

Adjustment,  83 

Adjudication,  141,  146,  150,  154, 

159 

Advertising,    136 
American  Fork,  94,  103 
Andrews,  Wm.,  75 
Antelope  Cr.,  75 
Application,  241,  259,  278,  181, 

198 
Apportionment,    106,    109,    110, 

197,  276 
Appropriation,   52,   61,   63,   66, 

113,  114,  143,  154,   167,  168, 

169,  170,  177,  178,  179,  180, 

184,  186,  190,  191,  197,  275, 

278 


Beneficial  use,  138 

Bennion,  90 

Benson,  46,  98 

Bids,  242 

Big    Cotton  wood,    52,    77,    179, 

185,  187 

Bingham  Canyon,  65,  76 
Bishops,  19,  20,  83,  92,  93,  107, 

170 
Bonds,  21,   121,   130,  133,  135, 

208,  272,  283 
Bothwell,  J.  R.,  105,  205,  206, 

207,   209 

Box  Elder,  53,  59,  66,  146,  151 
Brigham,  208 
Brinton,   82 
Brooks,  Sidney,  71 


Appurtenant,  55,  145,  242,  254,      Brown,  John,  13 


255 

Argyle  v.  Johnson,  268 
Arizona,    11,    29 
Ashley  Central  Irr.  Co.,  153 
Assistance,   219 
Authority,  94,  95,  96 

Babylon,  11 

Bancroft,  12 

Barker,  J.  N.,  67 

Barton  Cr.,  87 

Bear  Lake  &  R.  W.  &  Irr.  Co., 

207,  211,  214,  233 
Bear  River,  203,  205 
Bear  River  Canal,  203,  206 
Bear  River  City,  208 
Bear    River    Valley,    203,    204, 

205,  209 
Becker,  177,  183 


287 


Burr,  W.  H.,  32 
Butterfield  Cr.,   150,   172 
Butterfied  Min.  Co.,  172,  176 

Cache  County,  122 

Cache  Divide,  203 

Cache  Valley,  204 

Cache  Valley  Irr.  Co.,  229 

Cahoon,  67,  85 

Call,  76 

California,  12,  29,  30 

Canals,  275 

Canfield  Cr.,  88,  89 

Capital,  239 

Carey  Act,  204,  231,  235,  237, 

238,  240,  242,  243,  244 
Central  Pacific,  204,  205 
Charges,  260 
Circleville,  Irr.  Co.,  155,  160 


288 


INDEX 


City  Or.,  18,  46,  97 

Claims,  146 

Cleaning,  26,  113 

Clear  Creek  Irr.,  160 

Cold  Water  Canyon,  96 

Colonization,  33,  44,  110 

Colorado,  30 

Companies,  126 

Conklin,  206,  212 

Contest,  147 

Contract,  134 

Construction,   22,   23,   25,   241, 

242 

Control,  99,  151 
Conveyance,  37 
Cooperation,  19,  27 
Corbett,  J.,  97 
Corinne,  205,  208 
Corinne  Mill  &  C.  S.  Co.,  212, 

213,  215,  217 
Corporations,  19,  145 
Cost,  240 

Cottonwood  Cr.,  50 
Cottonwood  Canal,  50 
Court  House  Rock  Irr.  Co.,  18 
Courts,  190 
County     Commissioners,      126, 

127,  138,  267 
County  Courts,  36,  37,  45,  57, 

58,  63,  70,  193 
Crescent  Min.  Co.,  171 
Crismon,  64 

Davis,  194,  241 
Davis  Canal,  70 
Davis  County,  53 
Davis  County  Ct.,  53,  58 
Davis  &  Weber,  177 
De  Friez,  153 
De  Friez  v.  Ashley 
Deseret,  29,  31,  32,  44,  46 
Deseret  Irr.  Co.,  176,  229 
Deseret  Irr.  &  Canal,  121 


Deseret  Irr.  &  Nav.,  51 
Desert  Land  Act,  232 
Diamond  Fork,  258 
Dickenson  Farm,  71 
Distribution,   89,    90,   92,    198 
Districts,  152,  195,  201,  279 
Diversion,  182 
Dooley,  215 

Drainage,  264,  268,  269,  271,  274 
Dry  Creek,  47,  76,  77 
Dunn's  Creek,  77 
Duty,  110,   154,   155,  158,  159, 
160,  185,  186,  187 

East  Fork,  90,  160 
East  Spring,  88 
Egypt,   11 
Eldredge,  72 
Eliot,  169 

Emigration   Canyon,   17 
Emigration  Creek,   150 
Enabling  Act,  37,  219 
Entry  of  Lands,  40 
Euphrates,  11 
Evans,  Capt.,  77,  215 

Farm  Acreage,  253 

Federal  Grant,  245,  246,  247 

Federal  Land  Laws,  30 

Fife  et  al.,  177 

Financial  aid,  78,  79,  80,  81 

Finis  Irr.  Co.,   185 

Flackwell,  J.  G.,  74 

Flannelly,  T.  J.,  213 

Forests,  4 

Fortier,  S.,  208 

Forts,  34 

Fox,  J.  W.,  77 

Freedom,  67 

Fuller,  169 

Gailey,  John,  82 

Gardner,  A.,  63,  66,  73,  78,  82 


INDEX 


289 


Garland,   Wm.,   209,   210,   211, 

215 

Gams,  174 
Gemmell,  R.  C.,  201 
General  Assembly,  31 
Geological  Survey,  248 
Girder,  S.,  102 
"  Go  Devil,"  24 
Goetla,  O.  A.,  77 
Goodyear,  M.,  13 
Governor,    126,  131,  280 
Grant,  Geo.  A.,   <5 
Grants   of    Water,    64,    65,    66, 

67,  68 

Gravity  Canals,  20 
Great  Basin,  45 
Green  River  Irr.  Co.,  229 
Grove  Creek,  72 
Grove  Spring,  74 
Guadalupe  Hildalgo,  29 

Hague,   168,  182 
Haight  Cr.,  67 

Hammond  Ditch,  85,  209,  215 
Hardy,  L.  W.,  74 
Harriman,   172 
Harriman  Irr.  Co.,  175 
Harris,  A.,  98,  125 
Hatchtown    Project,    224,    227, 

228 

Haws,  N.,  70 
Herd  Grounds,  36 
Hickman,  G.  W.,  72 
High  Line  Canal,  259 
Homestead    Act,    39,    40,    232, 

250,  252 

Hooper   Canal,   177 
Hot  Springs,  74 
Hyrum  Ditch,  90 

India,    11,   22 

Indians,  30,  33,  34,  39,  110 

Indian  Agent,  31 


Intention,  180 
Interest,  134 
Irr.  Cor.,  48 

Irr.  Districts,  49,  51,  99,  117, 
126,   127,  266,  272,  280,  284 
Irr.  Lands  Co.,  229 
Italy,  11 

Jarvis,  S.  M.,  208,  212 
Jarvis-Conklin,    206,   208,   211, 

214 

Jensen,  H.  P.,  77 
Johnson,  Aaron,  50 
Johnson,  L.   P.,  77 
Johnson  et  al.,  167 
Jordan  Dam,  69 
Jordan  Mills,  65,  87 
Jordan  Irr.  Co.,  50 
Jordan   River,  50,   68,  69,   71, 

102,  121 

Jordan  &  S.  L.  C.  Canal,  69 
Jurisdiction  of  City,  93 

Katz  v.  Walkensaw,  175 
Kays  Creek,  71 
Keel  et  al.,  175 
Kennard,  L.  H.,  75 
Kimball,  H.  C.,  47 
Knell,  R.,  71 
Kroft,  157 

Land  Allotment,  35 

Land  Board,  220,  226,  243 

Land  Grants,  46,  47 

Land  "  Jumping,"  38 

Land  Office,  40 

Land  Speculation,  35 

Land  System,  29 

Land  Titles,  31,  41 

Law  of  Appropriation,  44,    45 

Law  of  1852,  57 

Law  of  1880,  56,  69,  70 

Law  of  1903,  199 


290 


INDEX 


Law  of  1919,  274 

Lehi,   170 

Lehi  Irr.,  170 

Levees,  25 

Liens,  250,  252 

Little  Cottonwood,  67,  73,  75, 

84,  86,  87 
Little,  I.  C.,  76 
Little  Muddy,  90 
Little  Walla  Walla  Irr.  Co.,  185 
Little  Willow  Cr.,  82 
Logan  City,  94,  98,  103 
Logan  River,  97 
Lots,  35 

Lower  Benson,  98 
Lower  Sp.,  76 
Los  Angeles,  12 
Lux  v.  Haggin,  42 

Mclntire,  S.,  160 
Maintenance,  114,  261 
Manning  et  al.,  177 
Mapleton,  258 

Marble  Cr.  Irr.  Co.,  177,  183 
Mead,  Elwood,  208 
Meagler,  171 
Measurements,  195,  197 
Merrill,  A.  S.,  76,  85 
Mexico,  29 

Midway  Irr.  Company,  175 
Mill  Cr.,  47,  60,  64,  150 
Moody  &  Willard  Co.,  269 
Mormons,  13,  30 
Mormon  Church,  19,  32,  33,  44 
Mormon  Colonizers,  15 
Mormon  Pioneers,  8,  11,  17,  29 
Mormon  Settlements,  15 
Mountain  Lake  Min.  Co.,  175 
Municipal  Control,  104 

Nat'l  Reclamation  Law,  7,  247, 
249 


Neff's  Canyon,  150 

Neff's  Farm,  72 

Neff,  John,  76,  85 

Neff's  Mill,  47 

Nebeker,  176 

Nephi  Irr.  Co.,   168,   181,   182 

Nevada,  30 

New  Ditch,  82 

New  Hope,  229 

New  Mexico,  12,  29 

North  Canyon,  65 

North  Fork,  71 

North  Mill  Cr.,  66 

North  Temple  St.,  51 

Notices,  62,  63,  130,  148 

Notice  of  Mineral  Claim,  62 

Ogden,    68,    80,    94,    103,    105, 

205,  207 

Ogden  Northwest   Irr.    Co.,   97 
Ogden   River,   97 
Operation,   261 
Oregon,  12,  30 
Oregon  Pioneers,  39 
Ownership,  179 

Pace,  James,  71 

Packer,  J.  P.,  75 

Parley's  Canyon,  150 

Parker,  John,  67 

Parrish,  G.,  63 

Patterson,  171 

Payments  for  Water,  222,  223, 

241,  253,  261 
Payson,  257 
Peeteeneet  Cr.,  71 
Percolation,  5,  171,  176 
Personal  Property,  193 
Peterson,  M.,  77 
Petition,   148 
Perry,  A.,  66 
Pierson,  H.,   86 
Pima  Indians,  11 


INDEX 


291 


Pioneer  Ditch  Co.,  154 
Piute  Project,  228 
Piute  Reservoir,  227 
Point  Lookout,  215 
Poulter,   George,  88 
Power  Appr.,  63,  64,  254 
Pratt,  A.,   13 
Pratt,  O.,  17,  18 
Pratt,  P.  P.,  13 
Pre-emption  Law,  39,  40 
Prehistoric  Man,  11 
Presidio  S.  F.,  12 
Price  River,  154 
Priority,  143,  145,  169,  170 
Prove,  94,  103,  113,  155 
Provo  Bench  Canal,  181 
Provo  Canal  &  Irr.  Co.,  47 
Provo  Manuf.   Co.,   101 
Provo  Reservoir  Co.,  155 
Provo  River,  48,  64,  98,  99,  101 
Provo   Valley,   30 
Public  Water,  86 
Pulsifer,  Z.,  65,  70 
Pumpkin  Seed  Cr.,  186 
Purchase  of  Water,  236 

Quakers,  208 

Rainfall,  2 
Raleigh,  0.  H.,  96 
Reclamation,     131,     222,     236, 

245,  250,  254,  256,  258 
Reed,  Peter,  68 
Rent  of  Water,  128 
Reservoirs,  3,  4,  6,  7,  219,  221, 

224 

Restriction,  47 
Richards,  S.,  82 
Richards,  W.,  47 
Richfield  Irr.  Co.,  155,  160 
Rights,  142,   143 
Rights,  Rescinded,  76 
Riparian  Rights,  42,  44/167 


Rio  Grande,  12 
Riverdale  Bench  Canal,  177 
Rivers,   20 
Rock   Sp.,   46 
Rockwell,  A.  P.,  63 
Rocky  Mountains,  2,  3,  19 
Rotation,   26,    109 
Rowe,  W.  H.,  212,  213 
Roweville,   215 

Sale  of  Water,  144,  221,  233 
Salt  Lake  City,  13,  33,  94,  101, 

103,   105,   179,   182 
Salt   Lake   City   &  E.   P.   Co., 

179,  182 

Salt  Lake  Co.,  53,  69 
Salt  Lake  Valley,    17,   30,  39, 

203 

San  Diego  Mission,  12 
San  Jose,  12 
Santa  Clara  River,  13 
Sanpete  Valley,  5,  53 
Sawards  et  al.,  171 
Selectmen,  54 
Sego  Irr.  Co.,  229 
Settlements,  27 
Shurtliff,  179,  187 
Sierra  Nevada,  2,  3,  247 
Silver  Min.  Co.,  171 
Size  of  Farms,  40 
Smith,  George  A.,  17,  102 
Smithfield  Cr.,  150 
Snake  Cr.,  175 
Snow,  E.,  17 
Snowdrifts,    3 
South  Cottonwood,  86 
South    Jordan    Canal    Co.,    69, 

70,  79 

South  Sandy  Fork,  85 
South  Water  District,  77 
South   Weber,   72 
South  Willow  Cr.,  85 
Surveyor  General,  32 


292 


INDEX 


Sp.  Fork,  50,  64,  257,  258 

Spaulding,  12 

Springs,  74 

Spring  Cr.,  77 

State  of  Deseret,  31 

State  Engineer,  136,  165,  189, 

193,  196,  201,  220,  275,  276, 

281,  283 
State  Land  Bd.,  223,  224,  228, 

238,  240 

State  Reservoir  Grant,  220 
Statistics  of  Crops,  16 
Surplus  Water,  75,  87 
Surveyor,  20 
Strawberry   Project,   256,   257, 

262 

Strawberry  River,  257 
Stowell,  W.  R.,  88 
Stowell  et  al.,  167 
Stoker's  Ward,  86 
Stone  Cr.,  65 
Stone,  D.  S.,  88 
Stone  S.  P.,  88 
Stipulation,  161,  163,  164,  165 
Superintendent,  198,  201 
Supreme  Court,   167 
Survey,  Hydrographic,  197 

Tanner,   181,  201 

Tarbet,  125 

Taxation,    112,    114,    115,    118, 

120,  122,  124,  131,  248 
Taylor,  John,  64 
Taylor's  Mill,  102 
Tenth  Ward  Survey,  72 
Ter.  Ownership  of  Water,  46 
Thome,  A.,  64 
Three  Mile  Cr.,  66,  76,  90 
Tidwell  Canal  Co.,  154 
Tigris,    11 

Timpanogas  Irr.  Co.,  229 
Tooele  Valley,  46 
Town  Blocks,  34 


Town  Charters,  26 
Town  planning,  33 
Town  location,  34 
Trail  Hollow  Cr.,  257 
Transfer  of  Land,  38 
Transfer  of  Water,  73,  82 
Twin  Springs,  46 

Union,  75,  84,  86 
U.  S.  Forest  Service,  6 
U.  S.  Geol.  Survey,  7 
U.  S.  Land  Office,  32,  40 
Utah,   14,  29,   30 
Utah  County,  48,  53 
Utah-Idaho  Co.,  215,  216 
Utah  Pioneers,  44 
Utah  &  Salt  Lake  Canal,  68,  69 
Utah  Ter.  Government,  30 
Use  of  Water,  44,  46,  177,  179, 
183 

Vermillion  Irr.  Canal  Co.,  160 

Vested  Rights,  142 

Vickers,  181 

Village  Community,  34 

Virgin  River,  13 

Voting,  133 

Wagons,  25 

Warm  Sp.,  102 

Wasatch  Range,  203 

Waste  Water,  143 

Water  Certificate,  148 

Water  Commissioners,  139,  141, 

149,  195 

Water  Measurements,  140,  142 
Water -waster,  25,  58,  59,  60,  67, 

86,  99,  101,  102,  105,  107,  110, 

111,  115,  145,  154 
Water-waster's  pay,  60 
Water  rights,  193,  252,  272 
Water  user's  Association,  135 
Water  Grants,  46,  47,  60 


INDEX 


293 


Weber  Canal,  71,  80,  81,  103,      Whitaker,  Jos.,  86 

105  Whitman,  12 

Weber  Co.,  53  Whitmore,  169 

Weber  Co.  Ct.,  59,  76  Wilkes,  C.,  90 

Weber  River,  13  Wilson  Canal,  177 

Weber  Valley,  30  Wright  Act,  65,  117,  120,  126 

Weiler,  E.  M.,  90  Wyoming,  30 
Weiner,  John,  72,  74 

West  Jordan  Irr.  Co.,  69                Young,  B.,  14,  18,  30,  46,  47, 

West  View  Irr.  Co.,  160  113 

Western  States,  246  Young,  L.  D.,  75 
Wheeler's  Farm,  67 

Whipple  U.,  96  Zane,  211 


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